How the same-sex marriage ruling affects immigration rights

Due to recent changes in state and federal law, gay and lesbian couples in Tennessee now have access to a wide range of immigration benefits.

Following the landmark Supreme Court ruling that struck down Section 3 of the Defense of Marriage Act, President Obama directed the federal government to make changes quickly to ensure that legally married same-sex couples could have access to the same federal benefits enjoyed by opposite-sex married couples.

To that end, Secretary of Homeland Security Janet Napolitano directed the United States Citizenship and Immigration Services (USCIS) to process family-based visa petitions for same-sex spouses in the same way that the agency processes those for straight spouses.

For many gay and lesbian residents of Tennessee, however, the benefits of the new policy were out of reach due to the fact that they were barred from marrying under state law. On June 26, 2015, however, another landmark Supreme Court ruling resulted in the legalization of same-sex marriage in every state nationwide. As a result, it is now possible for gay and lesbian couples in Tennessee to marry and petition for family-based immigration visas when one spouse is a foreign national.

Seeking a green card or visa for a same-sex spouse or fiancé(e)

When a U.S. citizen or lawful permanent resident (green card holder) is married or engaged to a foreign national, he or she may petition for a family-based immigrant visa on behalf of the spouse or fiancé(e). Similarly, a U.S. citizen who is engaged to a foreign national can petition on his or her behalf to obtain a fiancé(e) visa, allowing that individual to enter the United States to be married. Now, same-sex couples in Tennessee have access to these rights on the same basis as married or engaged opposite-sex couples.

Streamlining the citizenship process

After being granted a green card, an immigrant who wishes to become a naturalized U.S. citizen normally must wait at least five years before becoming eligible to do so. However, the required residency period is reduced to three years for individuals who are married to a U.S. citizen. With same-sex marriage now legal in Tennessee, this means that lesbian and gay foreign nationals who successfully obtain a green card through a U.S. citizen spouse will become eligible to begin the naturalization process after three years.

Immigration benefits through other family members

Gay and lesbian immigrants in Tennessee have a lot to gain from the recent changes triggered by the Supreme Court’s gay marriage decision, and the immigration benefits are not limited to the spouses themselves. The decision also affects other circumstances in which an immigration benefit is dependent on the existence of a marriage, such as waivers of inadmissibility, employment-based immigration and refugee or asylum petitions. In these cases, USCIS policy requires that legally married same-sex couples must be treated in exactly the same way as heterosexual couples.

Contact a lawyer to learn more

Family-based immigration is a broad and complex topic, and this article provides only a brief introduction to a few important highlights of the many benefits now available to gay and lesbian as a result of the new marriage laws. For answers to specific questions regarding these and other matters of immigration law for same-sex couples, contact an experienced immigration attorney to arrange a consultation.