How the Legalization of Same-Sex Marriage Nationwide Impacted Immigration Law
Almost a year has passed since June 26, 2015, when the United States Supreme Court ruled in Obergefell v. Hodges that the fundamental right to marriage is constitutionally guaranteed to same sex couples. At the time, Justice Anthony Kennedy wrote that gay couples have “the fundamental right to marry.” This is an especially momentous occasion when you consider that Congress only removed homosexuality as a ground of inadmissibility (ineligibility for a visa or admission to the United States) from the Immigration and Nationality Act by passing the Immigration Act in 1990. People with HIV were banned from entering the country until 2010. The Obergefell decision extended the 2013 U.S. v. Windsor holding, which struck down the part of the Defense of Marriage Act forbidding the federal government from recognizing same sex marriage as an unconstitutional abridgment of due process and equal protection rights. The Windsor decision allowed same sex couples to qualify for immigration benefits to the same extent as heterosexual couples. Because the Immigration and Nationality Act did not define a spouse as either a husband or a wife, the law required no further amendments to apply to same-sex couples. Within a day of the Windsor ruling, the United States Citizenship and Immigration Services (USCIS) announced that it would start to accept same sex green card petitions. In November of that same year, Maximilian Law Inc. received its first green card approval based on same sex marriage. When the Supreme Court ruled on Obergefell v. Hodges, all state laws banning same sex couples from marrying were struck down. Thus, where previously only same sex couples who were married in states that granted them marriage rights qualified for federal marriage benefits, now, all married same sex couples across the nation could qualify. This was significant from an immigration law standpoint, making it much easier for foreign nationals to obtain immigration benefits through marriage. Now, homosexuals may sponsor their foreign national spouses for U.S. permanent residency. Foreign spouses inside of the United States can apply for permanent residency through adjustment of status; Foreign spouses outside of the United States can apply via consular processing. After approval, the foreign spouse becomes a conditional U.S. resident and receives a green card which is valid for up to two years from the date it is issued. Conditional residency becomes permanent residency once both parties act to jointly remove the conditions on the residency 90 days prior to the second anniversary of receiving the conditional residency. The foreign spouse may be able to bring his or her unmarried children under 21 as well under a K-2 visa. Citizens may also sponsor a foreign same sex fiancé under a K-1 visa. The petitioning U.S. citizen must first file a K-1 application. Once that application is approved, the fiancé will then apply for the K-1 Visa at the U.S. consulate abroad. Upon receiving the visa, the fiancé can enter the United States and must marry the citizen within 90 days. The foreign fiancé may also bring his or her unmarried children under 21 using a K-2 visa.