Janet Napolitano: Gay Binational Couples Eligible for Green Cards

Homeland Security Secretary Janet Napolitano has released a statement regarding immigration visa petitions and gay binational couples:

Napolitano“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

The Department of Homeland Security has also released this FAQ:

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?

A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?

A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.


  1. RESOFFLA says

    What about those, whose applications were denied? Are they going to make us pay another $600 application fee plus any attorney fees and make us wait for several more months before we have to drive for 5 hours to the closest USCIS office for the interview after we already had one? The one at which our application was denied ONE day before Supreme Court’s ruling…

  2. Steve says

    They have also said this:

    “For the last two years, the agency has kept a list of same-sex couples whose green card petitions were denied, the officials said, anticipating that the Supreme Court would eventually weigh in on DOMA. Those denials will now be reversed without couples having to present new applications, if no other issues have arisen.”

  3. Grover Underwood says

    this is the best thing IMO to come out of the DOMA repeal; families can now be together

  4. Matt N says

    Would be nice if they also confirm that same-sex spouses are eligible for derivative visa statuses as well (e.g. H-4 for workers on H1-B visas)

  5. G. says

    My partner and I have been together since 2003, in 2009 he made a stupid mistake which got him incarcerated. He will be on parole next year, and we plan to marry. Would he be able to still have the same Federal Rights as others who have not been incarcerated, including the ability to petition a spouse for a greencard?

  6. says

    @g it will be difficult because those with criminal backgrounds are rarely given greencards and are barred from citizenship. If it was a minor crime and he’s had an otherwise clean record try apying for a pardon after he’s completed his probationary period.

  7. Jere says

    My partner and I have a civil partnership in the UK (he’s British, I’m American). In the UK, for all intents and purposes, this is identical to a marriage. The UK has not quite gotten around to using the word “marriage” yet, but probably will soon and it’s likely that we’ll be automatically retroactively upgraded to marriage. But what does this mean for us now? Can I sponser him based on our civil partnership?

  8. AG says


    Even American citizens behind bars can petition for a green card for their spouses. However, it’s very important to demonstrate that the US citizen can financially support his spouse, which is very hard to do when the US citizen is in prison. But a US citizen with a criminal record but with a gainful employment can certainly sponsor a foreign spouse for a green card.

  9. Jeremy says

    Unfortunately, civil unions (whether from the US or another country) will not be sufficient to sponsor your spouse for a green card. It will need to be a legal marriage that took place in a country (or a state) that has legalized same-sex marriage.

  10. G. says

    Well, my partner who will be on parole next year is the citizen and is actually well to do, I am the foreigner who has a great job as well. We both are financially, secured. Thanks for all the replies. I am just worried if he can still federally-sponsor a foreign spouse even with a criminal background. He does, I don’t.

  11. Jim Rashti says

    My partner and I can not marry until he comes here .
    Can I invite him as my fiance , then we marry here in California ?