Previously, due in part to the Defense of Marriage Act, only opposite sex spouses could sponsor each other for immigration status. Even if a same sex couple was legally married in a foreign country or in a state in the U.S. where such marriages are valid, the government agency which decides immigration petitions was prohibited from approving such applications. This prohibition forced same sex couples, where one individual was not a U.S. citizen or permanent resident, regardless of the legality of their marriage or long-term commitment to each other, to remain separated (with one spouse outside the U.S. and the other inside the U.S.), to live together outside of the U.S., or to live together inside the U.S. while the foreign national spouse was without lawful immigration status. The U.S. citizen in these relationships was forced to choose between separation from their partner or spouse or separation from their remaining family in the U.S.
However, the Supreme Court’s decision changed this situation. Now, same sex couples who are legally married in either a foreign country or in a state which recognizes such marriages have the same rights as opposite sex married couples have to obtain lawful immigration status for the foreign national spouse, based on their marriage. The process of sponsoring a spouse for immigration status in the U.S. can be extremely long, expensive and complicated. The process likely will be more so for same sex couples since they may face additional scrutiny into their relationship and may lack the type of evidence of their marriage possessed by more traditional married couples. Nevertheless, the impact of the Supreme Court’s decision in Windsor is likely to be viewed as a positive development which creates new opportunities for same sex couples.
For any questions, or a review of your situation, please contact one of Paule, Camazine & Blumenthal’s St. Louis and Clayton, MO immigration attorneys, Melissa Nolan or Pete Gianino at (314) 727-2266.
By: Melissa G. Nolan