With the recent U.S. Supreme Court decision in Windsor v. US http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf striking down a part of the Defense of Marriage Act (DOMA), U.S. Embassies and Consulates, as well as the US Citizenship and Immigration Service (USCIS) will adjudicate immigration applications that are based on same-sex marriage. The same-sex spouse of an H-1B temporary worker, for example, may secure an H-4 visa; the same-sex spouse of an L-1 intra-company transferee, an L-2 visa; and so on throughout the alphabet of nonimmigrant visas. The children and step-children of same-sex couples may derive the same benefits as the dependents of opposite sex couples. The same-sex spouse or stepchildren of an F-1 or M-1 student will need an I-20A before applying for his/her F-2 or M-2 visa; while the J-2 beneficiaries of a J-1 Exchange Visitor with need an approved DS-2019 in order to apply for their visas.
A US citizen may petition for his/her same-sex foreign national spouse to secure U.S. permanent residence. The couple will be interviewed to prove to a USCIS adjudications officer that they have a bona fide marital relationship and married one another for the purpose of making a life together. An opposite sex couple has the same burden.
A “marriage” is not a civil union or domestic partnership or a long time relationship. The couple needs to be married in a jurisdiction where same-sex marriages are valid. The general rule is that if the marriage is lawful where celebrated , it is lawful for U.S. immigration purposes—with the fall of DOMA that rule has been expanded to include same-sex marriages. There are questions that have yet to be answered about “marriage”. For example, in some countries, the term “registered partnership” or “registered life partnership” is used. Is that a “marriage” ? USCIS has made it clear that the couple need not live in a state of the United States where same sex marriages are celebrated.
Just as with opposite sex couples, the fiancé (K-1) visa is available to bring a same-sex partner to the US to be married. After the union has been contracted in a state permitting same-sex marriages, the foreign spouse may apply to adjust to permanent residency in the US.
If the couple is in a civil union or domestic partnership then, the current policy of permitting a partner of a nonimmigrant visa-holder to come to the US on a B-2 visitor visa as member of the household still is available. But, if the purpose of the visit is to marry and stay in the US, the B-2 is not appropriate and that strategy could cause serious immigration problems.
The ramifications of USCIS’s recognition of the validity of same-sex marriages extends to spouses who may seek permanent residence based on their partner’s employment-based adjustment of status, to waivers based on extreme or exceptional hardship to a US citizen or permanent resident spouse, to benefits under the Violence Against Women act (VAWA) and beyond . This major legal change is still hot off the Bench, so there will be many questions and interpretations that need to be asked and answered. Times have changed in the world of U.S. Immigration Law for married same-sex couples. They are now equal to opposite-sex married couples under US immigration laws. PROGRESS !