Defense Of Marriage Act FAQs

If I am a U.S. Citizen or Lawful Permanent Resident in a same sex marriage to a foreign national, can I sponsor my spouse for a Family Based Immigrant Visa?

Yes, with the new DOMA decision stemming from Windsor, all petitions and applications will be treated the same despite whether it is a same sex or opposite sex marriage as long as the marriage was in a state that recognizes same sex marriage. It used to be that only opposite sex marriages could apply for family based Immigrant Visas, however now same sex couples can apply for their family as well.

Example: U.S Citizen marries foreign national in a state that recognizes same sex marriage. That couple can now apply for the relatives of the foreign national despite them being a same sex marriage.

What if my spouse and I live in a state that does not recognize same sex marriage?

As of now there are 13 U.S. states plus the District of Columbia that honor same sex marriage equality. For immigration purposes the Department of Homeland Security looks to see the location that the marriage took place. If the marriage occurred in a state that recognizes same sex marriage, the marriage is presumed valid for all federal purposes, this was the decision that occurred in 2005 during the case Matter of Lovo-Lara.

Example: U.S. Citizen marries foreign national in New York, a state that recognizes same sex marriage, and then decide to move to Texas, a state that does not recognize same sex marriage. The couple would still qualify for USCIS benefits because their marriage is valid in the state they were married, New York.

Immigration requires that the marriage be a bona fide marriage. What does this mean?

Since couples will be applying for federal benefits, the USCIS requires proof that the marriage is "bona fide" or in easier terms, that the marriage was entered in good faith and not for fraud reasons. It is up to the couple that is trying to apply for federal benefits to prove that their marriage is real and was entered in with good intentions. Ways to establish that the marriage was entered in good faith can be shown by providing proof of joint tax returns, shared bank accounts, joint property leases and other forms of documentation.

When do these new DOMA regulations take effect?

The new DOMA regulations take place immediately, and same sex couples can no longer be denied benefits because of their same sex relationship. The Secretary of Homeland Security issued a statement "directing U.S. Citizenship and Immigration Services to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite sex spouse"

What if I submitted an application/petition for my partner before the DOMA ruling but I was denied?

Before the Windsor decision, petitions of same sex couples were denied due to not meeting the opposite sex requirement. Since this has been over ruled, the USCIS is not accepting applications and reopening applications that were previously denied due to same sex marriages. No fee will be required to reopen any case that was previously denied due to being a same sex marriage.

If you have any questions, please contact us here at the Law Offices of Mana Yegani, history is being made and it's time to take advantage of the new DOMA rulings.