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USCIS Announces First FAQ’s Post-DOMA’s Section 3 Demise

Today, USCIS announced two FAQs on implementation of immigration procedures for same sex marriage couples. The first one is pretty basic in that I130 visa petitions can be filed now for spouses of US citizens and green card holders. The second FAQ is rather wishy washy about cases where couples are lawfully married in a state that authorizes same sex marriages but where the couple lives in a state that does not recognize such marriages. There, USCIS says that petitions can still be filed but that there could be some exceptions, none of which are defined. I understand from Immigration Equality that they have asked USCIS to clarify their position. Generally, US immigration law honors the law of the place where a marriage takes place or is celebrated. Stay tuned for further clarifications.

I know that I keep harping on this in every post, but understand that just because a couple can marry, marriage alone does not convert a person to lawful status. In addition, a marriage does not guarantee that the person is otherwise eligible to immigrate temporarily or permanently. Nor is a marriage case necessarily the most expedient method of immigration to the US compared to some other visa categories. And, finally, pursuing a green card, known as permanent residence, means an intent to take up residence and living in the US on a permanent basis. Therefore, green cards may not be the best goal if there is no intent to spend most of the time in the USA. By contrast, pursuing a green card can also conflict with the required intent to live permanently abroad if using the Visa Waiver program (WT/WB), tourist, student and some other visas requiring nonimmigrant intent. Making false statements on a visa application or to a border or consular officer can create many problems down the road. A careful evaluation of your case with an experienced immigration attorney is highly recommended.