On June 26, 2013, when the U.S. Supreme Court determined in the Windsor case that the section of DOMA (The Defense of Marriage Act) that stated, among other things, that same sex couples did not have the legal right to marry, was unconstitutional, the Court opened the door for a U.S. citizen or green card holder that is married to a same sex partner that is a not a U.S. citizen or green card holder. 

Unfortunately, since, at this time, only 14 U.S. jurisdictions (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington and Washington D.C.) allow same-sex couples to marry, the same-sex sponsoring couple must have been married in one of those jurisdictions. However, in addition to the U.S. jurisdictions that allow same-sex marriage, the same-sex couple may be married in a foreign jurisdiction that allows same-sex marriage. As long as the same-sex couple is married in a jurisdiction that allows same-sex marriage, the immigration process will be the same as that for an opposite-sex couple. Only one additional question will be asked: Were you married in a jurisdiction that allowed same-sex couples to marry? 

It is not clear when same-sex couples will be treated in all respects as are opposite-sex couples. Shortly after the Supreme Court ruled on DOMA, Homeland Security Secretary Janet Napolitano stated the following: “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.” 

Things are moving quickly. At least one same-sex couple has already benefited in New York City by having a deportation stopped. Another same sex couple has already been granted a green card. The couple resides in Florida, a state that does not allow same-sex marriages. They were married in Brooklyn, New York (across the street from my office), a state that allows same sex marriages. While more married same-sex couples are no doubt obtaining benefits every week under U.S. immigration law because of the Supreme Court’s decision, until written directives are issued by the U.S. Citizenship and Immigration Services (USICS), results may be uneven. 

If you are a U.S. citizen or green card holder and wish to sponsor your same-sex spouse, it would be best to consult an experienced immigration attorney before acting.