Department of Homeland Security Secretary Janet Napolitano on Monday formalized the end of the ban on gay married couples being able to receive green cards based on their marriage.
The move followed news this weekend that at least one such petition — for a Florida same-sex couple married in New York — already had been approved.
In a statement, Napolitano said:
After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.
The change is a direct effect of the Wednesday Supreme Court decision ending the Defense of Marriage Act’s ban on the federal government recognizing same-sex couples’ marriages.
In addressing the first petition known to have been approved, the couple’s attorney, Lavi Soloway, told BuzzFeed on Saturday, “The approval of this petition demonstrates that the Obama administration’s commitment to recognizing same-sex couples’ marriages after the Supreme Court ruling is now a reality on the ground.”
UPDATE: In a Frequently Asked Questions section abut the implementation of Wednesday’s DOMA ruling, DHS answers two key questions:
Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.
Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?
A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.
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