One of the results of the recent U.S. Supreme Court decision striking down key portions of the Defense of Marriage Act (DOMA) is that the U.S. Citizenship and Immigration Service (USCIS) has approved the first marriage-based green card to a legally married same-sex couple residing in Florida.
USCIS is now reviewing immigration visa petitions filed on behalf of same-sex spouses in the same manner as those filed on behalf of opposite-sex spouses. So, if you are a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national, you can now sponsor your spouse for a family-based immigrant visa by filing a Form I-130 (used when the immigrant is overseas or is in the U.S. but is not eligible to use the adjustment of status procedure). Your eligibility to petition, and your spouse’s ultimate admissibility, will now be determined according to the applicable immigration law and won’t be automatically denied because your marriage is a same-sex marriage.
Likewise, if you and your spouse were married in a U.S. state that recognizes same-sex marriage but live in a state that does not, you may now file an immigrant visa petition for your spouse, although there are some exceptions. Generally, USCIS looks to the law of the place where the marriage took place to determine whether it is valid for immigration purposes. There are some exceptions, however, and USCIS may look instead to the law of the state of residence in certain situations.
How long the process will take for same-sex couples is uncertain at this point. A number of same-sex couples seem to have anticipated the Supreme Court’s decision by filing their visa petition or green card applications before the decision was announced. Depending on when they filed, they may have their green card issued soon. The typical wait for an I-130 visa petition is about six months. If the immigrant is already in the United States and is eligible to use the U.S.-based adjustment of status procedure, the wait depends on the local USCIS District Office, but it usually runs a couple of months.
In spite of all of this, it still is best to consult with an experienced immigration attorney before filing your green card application. Your Pinellas County immigration attorney can help you fill out the necessary forms to that you have no surprises.