Immigration Law Changes as a Result of Windsor v. the United States

In response to the U.S. Supreme Court’s landmark decision in Windsor v. the United States, the U.S. Department of State has issued new guidelines for visa applications.

In this case, the Supreme Court found Section 3 of the Federal Defense of Marriage Act (DOMA) to be unconstitutional. As a result of this decision, visa applications based on same-sex marriages are now treated the same way opposite-sex marriages are. Some major immigration changes that have been implemented as a result of this decision include:

  • Engaged same-sex couples are treated the same way as engaged opposite-sex couples.
  • A same-sex spouse of a U.S. visa applicant can now qualify for derivative visas, regardless of whether the applicant is coming to the United States for work, study or international exchange, or as a legal immigrant.
  • Similarly, stepchildren of a foreign national acquired through same-sex marriage are eligible for beneficiary or derivative status.
  • Additional documentation requirements apply equally to same-sex couples and opposite-sex couples.
  • U.S. citizens who are engaged to marry a foreign national of the same sex may file a Form I-129F and apply for a fiancé(e) (K) visa. Thus, as long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for the purpose of marriage.
  • A visa applicant does not need to live or intend to live in a state where same-sex marriage is legal to be considered legally married for immigration purposes. The marriage need only be valid in the jurisdiction (U.S. state or foreign country) where it took place.
  • Civil unions and domestic partnerships are not treated as marriages for immigration purposes.

For help with any immigration issue, an experienced Florida immigration law attorney can provide you with the legal guidance you need.

 

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