On October 31, 2013, attorney John Messing successfully obtained approval of the first same-sex marriage petition for permanent residency considered by USCIS in southern Arizona. The client wrote:
My same-sex spouse sponsored me for a green card as soon DOMA became unconstitutional. John, was very prompt to return my call himself in order to get some info about the case and let me know whether he could help us and whether we should go ahead with a consultation.
After some thinking, we went with the consultation. John charges a fair fee for the consultation and if you hire him for the case, then he applies the consultation payment towards to your total balance.
John was very understanding, knowledgeable of the immigration law, and he knows and understands how the local USCIS office operates, which is very important for tricky cases.
John was very responsive with emails; most of the time he would reply within the hour and many times within minutes.
Once we filled our application I asked John about a possible timeline of events. I was pleasantly surprised how everything went like John set it will go.
John accompanied as for the interview;walking through the Tucson USCIS building everyone was saying hello to John. At the interview everything went well; at the end there was a legal issue (our case was the first one for the Tucson's office) that was raised for same-sex marriages, and John got it resolved within hours!
I got my green card in the mail about 10 days after the interview! Dealing with immigration matters it was always a stressful matter for me, as soon as I hired John I stopped worrying. You should do the same!
On June 26, 2013 the U.S. Supreme Court ruled that the Defense of Marriage Act (DOMA) was unconstitutional. As a result, same-sex couples married legally in a U.S. or foreign jurisdiction that authorizes same-sex marriages should be eligible for family based green cards in the U.S. that were previously unavailable, with equal requirements and rights as heterosexual couples.
Although there is some uncertainty about the applicable procedures and time frames to implement them, Secretary of Homeland Security Janet Napolitano promised swift action with sister agencies to implement the ruling, and issued preliminary FAQ's for the process. and the Director of the United States Citizenship and Immigration Services stated in an address to an annual convention of immigration lawyers on June 27, 2013 that cases of same-sex marriage green card petitions based on marriage to a U.S. citizen which were previously denied based on DOMA will now be processed. The implication is that new filings should also be processed without delay.
The New York Times reported on June 30, 2013 that a same sex petiton for permanent residency was approved in Florida, where gay marriage is not performable, though the couple held the marriage ceremony in New York, where it is.
The U.S. Board of Immigration Appeals, in Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013), re-affirmed that the law of the place of marriage in most circumstances was all that was needed for permanent residency, without regard to the law of the place where the couple resides when filing.
Since August, 2013, the Foreign Affairs Manual provides that the law of the place of marriage governs exclusively to determine if a marriage is immigration-eligible. See 9 FAM 40.1 N1.1. The State Department and Homeland Security websites are in agreement.
It is important to bear in mind that state laws may have residency requirements prior to marriage applicable to all marriages and they should be consulted before making plans for a ceremony for that purpose.
On July 26, 2013, USCIS clarified that same sex married foreign nationals who accompany their foreign spouses for authorized work, investment or student purposes to obtain immigration benefits available to spousal dependents will be eligible just like opposite sex couples. However, unlike same sex spouses of U.S. citizens, any such dependent spouse who has overstayed a visa or engaged in unauthorized work in the past may encounter problems, and if the period of overstay or unauthorized employment has exceeded six months, may face a bar to return to the U.S. for many years if they simply leave the U.S. and try to re-enter as a same sex dependent spouse under the new ruling. This is not specific to same sex couples and is also true for opposite sex couples with a dependent foreign spouse who has overstayed a visa or worked without authorization.
Bottom line: same sex couples should be treated identically as opposite sex couples as a matter of official policy within USCIS.
For these and any other DOMA related issues, Please contact Messing Law Offices at (520) 512-5432 for further assistance.
At Messing Law Offices, we provide high quality legal services and expertise to families, working men and women, and businesses. If you have a concern in the areas of family based immigration, business based immigration, employment based immigration, or naturalization and you are seeking the help of an experienced immigration lawyer, contact Messing Law Offices at (520) 512-5432 for professional Arizona immigration attorney assistance.