Immigration and Same-Sex Couples: Where the Law Currently Stands

On June 26, 2013, the U.S. Supreme Court handed down a landmark ruling in the case of State v. Windsor.  In this monumental decision, the Supreme Court struck down the Defense of Marriage Act, or DOMA, and compelled the U.S. government to treat all marriages uniformly, whether they are opposite or same-sex.  The case itself concerned a woman who was forced to pay an extraordinarily high estate tax upon the death of her wife, as their marriage was not recognized under federal law.  While estate tax was the specific issue at hand, the Court’s decision had much broader implications.  The ruling had tremendous impact on the field of immigration law, requiring for the first time that same-sex couples be treated the same as opposite sex ones for purposes of immigrating to the U.S.

The following is a list of frequently asked questions concerning the law on immigration and same-sex couples, as it exists following the Supreme Court’s ruling:

Can a U.S. citizen marry his or her same-sex partner, and then apply for naturalization proceedings (such as a green card)?

            Yes.  Same-sex couples, so long as one spouse is a U.S. citizen, can marry in a state that allows same-sex marriage then petition for naturalization of the non-citizen spouse.

As an Arizona resident, where gay marriage is not recognized, can I petition for naturalization of my same-sex partner?

            Yes.  When two people marry in a state, and that state recognizes the marriage, the federal government will as well.  Accordingly, for immigration purposes, it does not matter that Arizona refuses to recognize same-sex marriages.   The Foreign Affairs Manual provides that the law of the place of marriage governs exclusively to determine if the marriage is immigration eligible.  Further, within USCIS, same-sex couples are to be treated identically as opposite sex couples.

Same-sex couples in Arizona will not be eligible for certain state-offered benefits, such as tax and employment benefits, but following DOMA, same-sex partners will be eligible for the same immigration benefits.

How will the naturalization process work?

            The process will devolve the same as it would for any other married couple.  There will be several forms to fill out, meetings with USCIS staff, and appearances to be made.  The non-resident spouse will first receive a green card, allowing him or her to remain for a period of time in the country.  After a period of time, the non-resident spouse can apply to become a full citizen and enjoy all the benefits that accompany it.

Can I navigate the same-sex immigration process without the help of an attorney?

            Considering the high-stakes involved, the complexity of the law, and the relative novelty of same-sex immigration, it is not recommended that individuals attempt to navigate the process alone.  Thousands of applications for green cards and visas are rejected every day, often due to errors in filing or missing documentation.  Successfully obtaining a green card for a same-sex partner, or another form of visa, requires absolute perfection, proper wording, attention to detail, and time management.  A knowledgeable Phoenix immigration lawyer will simplify the process and ensure no mistakes are made along the way.

Ariano & Reppucci, PLLC: Handling Even the Most Complex Immigration Matters

            The experienced Phoenix immigration lawyers at Ariano & Reppucci, PLLC, have built a reputation for tackling even the most complex of immigration matters.  Our immigration attorneys provide practical solutions for any immigration issue, simplifying and expediting the process so that your loved one can soon join you as a full American citizen.  We are available 24/7 to meet your legal needs.