The Supreme Court held that section 3 Defense of Marriage Act (DOMA), which had barred recognition of same-sex marriages for all Federal purposes, including immigration, is unconstitutional. Same-sex marriage is now a lawful basis for all immigration benefits based on marriage.
A same-sex marriage legally valid in the jurisdiction in which it was performed is valid for immigration, regardless of whether the jurisdiction in which the parties reside recognizes same-sex marriage. In the immediate wake of the Windsor decision, many same-sex married couples, many with longstanding relationships, have filed marriage-based I-130 petitions. Some have been able to provide ample evidence because of the longstanding nature of their relationships. Other same-sex couples have had problems gathering evidence, for many reasons. These couples should think creatively about how to obtain evidence to meet the burden of proof. Consider these issues, which relate both to a couple’s initial filing and the §245 interview:
LGBT Couples with Substantial evidence of the marriage
Some LGBT couples have lived for years “in the closet,” and they may not have access to the same evidence as a married couple who live their lives freely and openly. They may work for an employer who discriminates (legally or illegally) against LGBT individuals, and they cannot take advantage of employment-related spousal benefits; they may rent from a homophobic landlord; they may not have come out to their families. If so, think creatively about what types of evidence the couple can obtain. You may need to supplement the available evidence with numerous personal affidavits from friends that confirm that the couple are not fully “out,” but are in a valid marital relationship.
Prove the Marriage-related Law
LGBT couples often obtained civil unions before marriage equality became the law of their locality. Some couples may mistakenly believe that their Civil Union was automatically converted to marriage upon introducing marriage equality to their locality. USCIS will not accept a civil union document alone, so the couple must get legally married before filing an I-130 petition.
Transgender marriage issues
Prior to the Supreme Court ruling, as long as a couple is married in a jurisdiction that recognizes marriage equality, that a spouse is transgender does not affect the validity of the marriage for immigration. If a couple is married in a locality that does not recognize marriage equality, the couple must prove: “…benefits based upon marriage may be approved on the basis of a marriage between a transgender individual and an individual of the other gender if the Petitioner/Applicant establishes:
1) the transgender individual has legally changed his or her gender and married an individual of the other gender,
2) the marriage is recognized as a heterosexual marriage under the law where the marriage took place and
3) the law where the marriage took place bars no marriage between a transgender individual and an individual of the other gender.”
USCIS will presume the validity of the marriage involving a transgender individual absent jurisdictional law and/or precedent that would place the validity of such marriage in doubt.
The Adjudicator’s Field Manual has a detailed discussion of the documentation USCIS will recognize regarding an individual’s changed gender. The documentation includes an amended birth certificate, passport, or medical certification from a licensed physician. Sex reassignment surgery is not a requirement for an approved I-130, unless the law of the place of marriage requires sex reassignment surgery for the marriage to be deemed valid.