Can a Same-Sex Couple Apply for a Greencard If The State They Live In Does Not Recognize Same-Sex Marriage?

Since the Supreme Court ruling in United States v. Windsor striking down the Defense of Marriage Act (DOMA) Section 3's definition of marriage as between one man and one woman, many same-sex immigrant couples have wondered if they can benefit if they live in a state that does not recognize marriage equality.

The simple answer is yes! To date and to the knowledge of the author, 15 states and DC recognize same-sex marriage. Having many Virginia clients, a state that does not recognize marriage equality, the question often arises for us.

United States Citizenship and Immigration Services (USCIS) has adopted the "place of celebration rule" meaning, (and based on immigration caselaw: Matter of Lovo-Lara and Matter of Zeleniak), the validity of a marriage is determined by the law of the State where it was celebrated.

For our clients in VA, neighboring Maryland does recognize same-sex marriage. For couples that do not reside in Maryland, they must complete a Non-Resident Marriage Application form before they may proceed with the marriage. For those who want to marry in other states that recognize marriage equality, it is this author's understanding none of the states that recognize same-sex marriage have a residency requirement, but they may have a form or three day waiting period that must be completed prior to the celebration of marriage.

The 15 states are Washington, California, Minnesota, Iowa, Illinois, Maine, New Hampshire, Vermont, New York, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, Maryland and don't forget DC (#16).

We are very pleased to represent LGBT couples before the Immigration services and welcome you to contact us with questions or if you need representation.

November 8, 2013

Ricky Malik, Esq.