Department of State Issues Guidance for Consular Posts after Windsor Decision

The Department of State recently issued guidance to its consular posts (U.S. consulates and embassies) following the Supreme Court’s decision in Windsor striking down section 3 of the Defense of Marriage Act (DOMA).  The following is a list of highlights from the guideline:

·         Visa applications filed by a same-sex spouse will be reviewed in the same manner as those filed by an opposite-sex spouse. 

·         A same-sex marriage is now valid for immigration purposes as long as the marriage is recognized in the “place of celebration.”  The same-sex marriage is valid even if the couple resides in a state that does not recognize same-sex marriage. 

·         The same-sex marriage is valid even if the applicant is applying in a country in which same-sex marriage is illegal.

·         Same-sex spouses and their children are now equally eligible for non-immigrant visa (NIV) derivative visas. 

·         A spouse of a U.S. Citizen or Lawful Permanent Resident may apply for an immigrant visa (so long as the priority date is current) after USCIS approves the I-130.  The place of celebration will determine whether the marriage is legally valid, not the applicants’ place of domicile.

·         Fiancé(e) visas are now available for same-sex partners of U.S. Citizens.

·         Diversity Visa applicants (green-card lottery) may now include same-sex spouses in their initial entry or add a spouse acquired after the initial registration.  For DV 2013 and DV 2014, same-sex couples will not be automatically disqualified for not including their same-sex spouse on their original entry.

Interestingly, the Department of State guidance asks consular sections to identify what types of marriage are available for same-sex couples in-country and update the reciprocity tables, pursuant to 9 FAM 41.105.  This leaves open the question of whether civil unions or other forms of legally recognized same-sex partnerships will be recognized as “marriage” for immigration purposes.  We will keep you posted on this.

The Department of State guidance can be found here and more user-friendly FAQs here.

BIA recognizes same-sex marriages for immigration purposes

The Board of Immigration Appeals (BIA) in Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA July 17, 2013) held that in light of the U.S. Supreme Court’s decision in U.S. v. Windsor, 133 S. Ct. 2675 (2013), Section 3 of the Defense of Marriage Act (DOMA) is no longer an impediment to the recognition of lawful same-sex marriages and the recognition of spouses under the INA if the marriage is valid under the laws of the state where it was celebrated.

The U.S. citizen petitioner, Oleg B. Zeleniak, filed an I-130, Petition for Alien Relative, on behalf of the beneficiary, Serge V. Polajenko, as his (male) spouse on March 10, 2010. USCIS denied the petition on July 27, 2010, and the petitioner appealed the denial to the Board. In its first decision, dated April 18, 2012, the Board remanded the record to the Director with instructions to address two issues: whether the petitioner’s marriage is valid under the applicable state (Vermont) law and whether the marriage would qualifies under the INA absent the requirement of DOMA § 3. On remand, the Director determined that the marriage was valid under Vermont law but declined to consider the issue whether the beneficiary would be a spouse under the INA absent the requirements of DOMA § 3 (the controlling federal statute). Hence the Director once more denied the visa petition. The petitioner once again appealed to the Board.

In its most recent decision, the Board sustained the petitioner’s appeal and again and remanded the record to the Director for further consideration of the sole remaining issue which was whether the petitioner had established that his marriage to the beneficiary was bona fide. 

The Board explained that the Windsor decision removed DOMA § 3 as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the state where it was celebrated and the Court’s decision is applicable to various provisions of the INA, including, but not limited to fiancé and fiancée visas, immigrant visa petitions, refugee and asylee derivative status, inadmissibility and waivers of inadmissibility, removability and waivers of removability, and cancellation of removal. The Board further observed that 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.