More Good News for Binational Same-Sex Couples

BIA Affirms Immigration Benefits Available Where Marriage Valid in State Celebrated, Regardless of Where Couple Resides

The news for same-sex binational couples keeps getting better. As has already been widely reported, the U.S. Supreme Court opened the door to various federal benefits for same-sex couples, including a variety of immigration benefits, on June 27, 2013. Immediately thereafter, the federal government began approving various immigration benefits for same-sex couples, including canceling a deportation for a Colombian man with a U.S. citizen husband, approving pending I-130 Immigrant Petitions for Alien Relative, and even re-opening previously denied cases that had been denied strictly on the basis of DOMA.

Despite the government’s quick steps to begin extending federal immigration benefits to same-sex couples, many couples and their attorneys were unsure whether the government would consider the state of the couple’s residence or the state where the marriage was celebrated when determining whether the marriage is valid. In fact, the U.S. Citizenship & Immigration Services (USCIS) further confused the public by stating the following:

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. (emphasis added)

The USCIS did not explain what these exceptions are or when they apply. Fortunately, the Board of Immigration Appeals (BIA) acted quickly to clarify this issue, and in a way that is favorable to couples who live in a state that does not recognize same-sex marriage. On July 17, 2013, in its decision in Matter of Zeleniak, the BIA stated clearly that for purposes of federal immigration benefits, the “issue of the validity of a marriage under State law is generally governed by the law of the place of celebration of the marriage.” Therefore, federal immigration benefits will be available to same-sex couples married in a state that recognizes same-sex marriage, even if they live in a state that does not.  For a list of the states that currently recognize same-sex marriage, please visit the website of the National Conference of State Legislatures.

Please contact an attorney at Minsky, McCormick & Hallagan, P.C. if you would like to know how same-sex couples can now take advantage of federal immigration benefits.