Immigration Benefits for Same-Sex Spouses: Further Guidance Released by USCIS in Wake of DOMA Ruling

Author: Melissa A. Silver, XpertHR Legal Editor

July 29, 2013

In United States v. Windsor, 2013 U.S. LEXIS 4921 (2013), the Supreme Court held that section 3 of the Defense of Marriage Act (DOMA), denying federal benefits (including immigration benefits) to same-sex couples, is unconstitutional. As a result of this landmark decision, the United States Citizenship and Immigration Services (USCIS) has released additional FAQs demonstrating its continued commitment to the implementation of the Court's determination in Windsor.

The FAQs clarify the following:

  • Individuals do not have to wait for the USCIS to release new guidance, forms or regulations before applying for benefits under the Windsor decision.
  • USCIS will reopen Form I-130, Petition for Alien Relative or other petitions or applications that were initially denied solely due to section 3 of DOMA and will reconsider such applications.
  • Regarding the process individuals must follow when seeking to reopen their Form I-130 applications or petitions, the following is advised:
    • If a denial occurred after February 23, 2011 (the date the President determined not to defend section 3 of DOMA), the USCIS will attempt to identify those petitions that were denied solely due to DOMA and will make an effort to notify individuals of the reopening of those petitions. If an individual wants to alert the USCIS of a petition that was denied during this time, the USCIS recommends that the individual send an email to USCIS that he or she has a pending petition and the USCIS will reply with any follow-up questions necessary to process the petition.
    • If a petition was denied before February 23, 2011, the individual must send an email to USCIS by March 31, 2014 requesting the USCIS to reopen the Form I-130 petition.
  • If the Form I-130 is reopened and the individual's work authorization was denied or revoked based upon the denial of the Form I-130, the USCIS will reconsider the denial or revocation and issue a new Employment Authorization Document, to the extent necessary.
  • If the USCIS cannot issue a decision immediately on a reopened adjustment of status application, the USCIS will do one of two things:
    • Process any pending or denied application for employment authorization; or
    • Reopen and approve any previously revoked application for employment authorization.

The USCIS has further stated that: "[if it] has already obtained the applicant's biometric information at an Application Support Center (ASC), a new Employment Authorization Document (EAD) will be produced and delivered without any further action by the applicant. In cases where USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment." Biometrics is the process to identify individuals such as by photographs, fingerprints and signatures.

  • Aliens in same-sex marriages who seek to qualify as a spouse accompanying or following a family-sponsored immigrant or employment-based immigrant will be treated exactly the same as those in opposite-sex marriages.
  • Same-sex marriages like opposite-sex marriages reduce the required residence period of five years to three years for naturalization.
  • Immigration laws that condition the eligibility of a waiver on the existence of a marriage applies equally to same-sex marriages.