On June 26, 2015, in the landmark decision Obergefell v. Hodges, the United States Supreme Court declared that the United States Constitution guarantees the right to marriage to same-sex couples. As with any issue decided by the Supreme Court, the consequences of the decision affect a vast number of Americans. The Supreme Court's decision on gay marriage also affects many outside the United States, particularly in the field of immigration. Obergefell follows the Court's decision handed down in United States v. Windsor invalidated Section 3 of the Defense of Marriage Act, which eliminated the distinctions between same-sex and opposite-sex legally married couples at the federal level. These decisions on same-sex marriage fundamentally alter the way immigration policy is administered, which in turn makes many more people eligible for immigration benefits.
United States Citizenship and Immigration Services now reviews all visa petitions filed on behalf of same-sex spouses in the same manner as those filed on behalf of an opposite-sex spouse. For example, a United States citizen or lawful permanent resident in a same-sex marriage to a foreign national may sponsor his or her spouse for a family-based immigrant visa and not be denied because of their sexual affiliation. This also means that a same-sex marriage qualifies as a "marriage" for an alien who seeks to qualify as a same-sex spouse accompanying to join an employment-based immigrant will not be denied based on sexual affiliation. In these cases, the United States Citizenship and Immigration Services treats same-sex marriages exactly the same as opposite-sex marriages. There are many options to same-sex couples even if the individual entered the United States many years ago and overstayed a valid visa, or if they entered as a child with their family and remained there, or if someone applied for them for an I-130 or I-140 petition application prior to April 30, 2001.
These are just some examples of the ramifications that the rulings on marriage equality have on immigration policy. If you or someone you know would like to apply for immigration benefits as a same-sex couple, please contact our office at (562) 464-6934 to speak to our experienced immigration court attorneys.