DHS to Review Applications Denied to Same-Sex Couples Due to DOMA

July 26, 2013 By Jesse Melgar
Section 3 of DOMA was ruled unconstitutional in June

Section 3 of DOMA was found unconstitutional in June.

The Department of Homeland Security (DHS) released new guidelines today announcing that it will reopen past petitions or applications that were denied because of the Defense of Marriage Act (DOMA) and were submitted after Feb. 23, 2011 – the date President Obama decided his administration would not defend the act in court.

The new guidelines will allow gay and lesbian couples to request a review of their denied case, however, regardless of whether the decision on their case was made before or after that date.

Additionally, U.S. citizens can bring their same-sex fiancés into the country ahead of scheduled marriages.

Last month, the DHS moved quickly in response to the Supreme Court ruling on DOMA and issued new policies regarding immigration petitions for couples in same-sex marriages. The post-DOMA policies guarantee that Visa applications of foreign nationals in same-sex marriages must be treated equally as applicants in heterosexual unions under the law.

Some of the highlights in the recently updated “Same-Sex Marriages FAQ” include:  

“Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.”

“Q2. I am a U.S. citizen who is engaged to be married to a foreign national of the same sex.  Can I file a fiancé or fiancée petition for him or her?
A2. Yes.  You may file a Form I-129F.  As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for marriage.”

“Q3: 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?
A3: 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.”

“Q5. My Form I-130, or other petition or application, was previously denied solely because of DOMA.  What should I do?
A5.  USCIS will reopen those petitions or applications that were denied solely because of DOMA section 3.  If such a case is known to us or brought to our attention, USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130 (such as concurrently filed Forms I-485).”  

If you or someone you know has questions about how the DOMA ruling might impact their binational same-sex relationship or marriage, we urge you to visit this page to find out more information.

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