The SCOTUS ruling and immigration law

Felicia Persaud | 7/2/2015, 11:23 a.m.

The historic Supreme Court ruling Friday, June 26 in the case of Jim Obergefell, which gives same-sex couples the right to marry in any U.S. state and established that they have the same rights as heterosexuals, now puts the spotlight again on the immigration rights of same-sex couples.

Interestingly, the issue was dealt with in the 2013 Supreme Court decision known as Windsor. Windsor overturned portions of the federal Defense of Marriage Act that defined marriage simply as the legal union of a man and a woman. That ruling effectively required federal agencies to recognize same-sex marriages. Shortly after the ruling, President Barack Obama directed all federal departments and agencies, including U.S. Citizenship and Immigration Services, to implement the ruling swiftly and smoothly.

This paved the way for USCIS to start accepting and processing same-sex applications for spouse-based visas, fiance visas or derivative status on a spouse’s citizenship status as they would for an opposite-sex marriage. That is, any U.S. citizen or LPR who is validly married to a foreign national can sponsor his or her spouse for a family-based visa regardless of the gender of each partner.

With the June 26 decision, the only limitations from the federal legal immigration hurdles facing gay, transgender, bisexual and lesbians will apply to those who are undocumented. The ruling will only help if the undocumented LGBT person gets married to a U.S. citizen and adjusts their status.

Under the 2013 rules, a U.S. citizen or lawful permanent resident in a same-sex marriage with a foreign national could sponsor a spouse for an immigrant visa based on the same rules that apply to a heterosexual couple. Meaning, to get a green card based on a same-sex marriage, you must be legally married either in the U.S. or abroad and be able to demonstrate that the legal marriage is based on a genuine, bona fide relationship.

According to the USCIS, the U.S. citizen spouse must file Form I-130. The eligibility to petition for a spouse, and the 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 denied as a result of the same-sex nature of the marriage.

If you are a gay or lesbian U.S. citizen and are engaged to be married to someone of the same gender, you are eligible to file a fiance petition. As long as all other immigration requirements are met, a same-sex engagement may allow your fiance to enter the United States for marriage. The holder of a K-1 fiance petition may enter the U.S. for the purposes of getting married within 90 days of entering. On the basis of the marriage, the foreign national may then file for a green card through a process called adjustment of status.

An I-601 or I-601A immigration waiver may be necessary for gay and lesbian foreign nationals with certain problems, such as criminal convictions, fraud and unlawful presence. These waivers require a demonstration of extreme hardship to a qualifying U.S. citizen or permanent resident relative.

Same-sex married couples can also benefit from Green Card Lottery wins, where permanent residency also applies to their same-sex married partners. Same-sex spouses of Treaty Trader (E-1) or Treaty Investor (E-2) visas may apply for an E visa derivative status, which also allows for work permits; H-4 visas are available for gay and lesbian individuals who wish to accompany their spouses on H-1B temporary work visas; and L-2 are available for gay and lesbian spouses of L-1 visa holders.

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The writer is CMO of Hard Beat Communications, which owns the brands News Americas Now, CaribPR Wire and Invest Caribbean Now.