The Defense of Marriage Act, also known as DOMA, was passed by Congress to limit federal rights of same sex couples that were legally married in states where gay marriages are legal. However, on June 26, 2013, the Supreme Court, in the case of Windsor vs. United States. overturned Section 3 of DOMA. This section, which denied federal rights to gay married couples that were available to other married couples, was ruled unconstitutional.
This ruling allowed same sex couples access to the same immigration rights as other married couples. These rights include:
- Immigration petitions for same sex spouses will be processed the same as any other marriage based petition.
- If the same sex marriage is recognized in the state or foreign country in which it was performed, then it is considered valid for federal immigration purposes. There are no legal requirements for the same sex couple to reside in the state where the marriage was performed, or in another state that recognizes same sex marriage rights, when the foreign spouse enters the United States.
- Children of foreign same sex spouses will be given the same derivative status as those of other married couples. The US citizen or permanent resident can petition for the children of their spouse to enter the United States at the same time as their spouse, as long as the marriage took place before the children turned eighteen years old. Children over eighteen at the time of marriage are not considered immediate relatives of the spouse, so they cannot accompany the foreign born spouse when the petition is granted.
- Fiance visas will be available for same sex fiances who wish to enter the United States to marry. They must meet the same qualifications as other couples. After the couple are married, the US citizen spouse can file for adjustment of status for their foreign born spouse, which can allow them to remain in the United States until a permanent residence petition can be processed.
- Children under twenty one years of age may accompany the foreign born fiance into the United States. Those who are under eighteen at the time of marriage may stay with the couple while the US citizen spouse petitions for permanent residence for them.Children over eighteen at the time of marriage must leave the country before their twenty first birthday.
The immigration process is complicated and often difficult. Same sex couples will need as much proof of the validity of their relationship as other married couples. Because of numerous cases of marriage fraud to obtain visas, petitions for marriage or fiance visas and permanent resident (green card) status may be denied if fraud is suspected. Non-profits that deal with immigration law may be able to offer visa and green card help, but since same sex immigration law is a fairly new field, a gay immigration lawyer may be more knowledgeable about immigration issues for same sex couples.