It’s official: Gay and lesbian Americans can sponsor their foreign spouses for immigration

This week, the Department of Homeland Security issued a statement that formalizes the new post-DOMA policy that gay and lesbian Americans can sponsor their married foreign national spouses for immigration purposes. At last, married binational same-sex couples will no longer fear separation from each other or be forced to live their lives in legal limbo. 

For years under the so-called Defense of Marriage Act, gay and lesbian Americans were not permitted to sponsor their legally married same-sex spouses for green cards because the federal government, which oversees immigration law, was prohibited from respecting the marriages of same-sex couples. Last Wednesday, Section 3 of DOMA was overturned by the U.S. Supreme Court, clearing the way for married couples to gain access to over 1,100 protections that marriage provides. Included in these protections is the ability to sponsor foreign national spouses for immigration.  

The statement from Department of Homeland Security Secretary Janet Napolitano reads:

After last week's decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) 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. 

The government has also made clear that gay and lesbian Americans can sponsor green cards for their legal spouses even if they live in one of the 37 states that does not respect marriages between same-sex couples. The department states:

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. 

Read more about the specifics of how the DOMA ruling will impact immigration law HERE

This weekend, Julian Marsh and Traian Povov became the first same-sex couple to successfully petition a marriage-based green card and have it approved. They married in October 2012 in New York, although they live in Florida. Popov is originally from Bulgaria, but the couple is now thrilled to be able to live their lives together - without fear of separation - in Florida. 

The impact of their visa petition being the first approved is a signal that the government recognizes that their New York marriage license is valid even in states that do not respect the license, including, for example, Florida. Lavi Soloway, an immigration lawyer who founded The DOMA Project in order to stop the deportations of married same-sex couples, explained the impact to Buzzfeed. He said:

It is symbolically very important that this first petition that was approved comes for a couple that lives in Florida, a state that has a constitutional ban preventing same-sex couples from marrying. This shows the effect of the DOMA ruling for immigration purposes will extend to couples, no matter where they live, so long as they have a valid marriage license.

Learn more about what life after DOMA means for married same-sex couples HERE.