Serving Palm Springs, CA
Same Sex Marriage
Same-Sex Marriages – Immigration Attorney for DOMA applicants - Serving The Greater Palm Springs Area
“Thanks to the repeal of DOMA on June of 2013, U.S. citizens and green card holders can now petition their same-sex spouses to reside permanently in the U.S. If you are a same sex-couple and wish to hire an experienced attorney – call Commonwealth Law Group.
Commonwealth Law Group attorneys are highly skilled and sensitive to the fact that – yes – there is still bias within immigration and same sex related cases. We can guide you through this process to ensure your case is heard on its merits!
Let us be your advocates.
Below, you will find the statement from Homeland Security regarding the rule, and some Frequently Asked Questions to assist you in gaining more information about qualifying.”
Statement from Secretary of Homeland Security Janet Napolitano on July 1, 2013:
"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."
Frequently Asked Questions
Petitioning for my Spouse
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? NEW
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 denied as a result of the same-sex nature of your marriage.
Q2. I am a U.S. citizen who is engaged to be married to a foreign national of the same sex. Can I file a fiancé or fiancée petition for him or her?
A2. Yes. You may file a Form I-129F. As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for marriage.
Q3: My spouse and I were married in a U.S. state or a foreign country that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse? NEW
A3: Yes. As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage..
Applying for Benefits
New Applications and Petitions:
Q4. Do I have to wait until USCIS issues new regulations, guidance or forms to apply for benefits based upon the Supreme Court decision in Windsor?
A4. No. You may apply right away for benefits for which you believe you are eligible.
Previously Submitted Applications and Petitions:
Q5. My Form I-130, or other petition or application, was previously denied solely because of DOMA. What should I do?
A5. USCIS will reopen those petitions or applications that were denied solely because of DOMA section 3. If such a case is known to us or brought to our attention, USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130 (such as concurrently filed Forms I-485).
USCIS will make a concerted effort to identify denials of I-130 petitions that occurred on the basis of DOMA section 3 after February 23, 2011. USCIS will also make a concerted effort to notify you (the petitioner), at your last known address, of the reopening and request updated information in support of your petition.
To alert USCIS of an I-130 petition that you believe falls within this category, USCIS recommends that you send an e-mail from an account that can receive replies to USCIS at USCIS-626@uscis.dhs.gov stating that you have a pending petition. USCIS will reply to that message with follow-up questions as necessary to update your petition for processing. (DHS has sought to keep track of DOMA denials that occurred after the President determined not to defend Section 3 of DOMA on February 23, 2011, although to ensure that DHS is aware of your denial, please feel free to alert USCIS if you believe your application falls within this category.)
For denials of I-130 petitions that occurred prior to February 23, 2011, you must notify USCIS by March 31, 2014, in order for USCIS to act on its own to reopen your I-130 petition. Please notify USCIS by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov and noting that you believe that your petition was denied on the basis of DOMA section 3.
Once your I-130 petition is reopened, it will be considered anew-without regard to DOMA section 3-based upon the information previously submitted and any new information provided. USCIS will also concurrently reopen associated applications as may be necessary to the extent they also were denied as a result of the denial of the I-130 petition (such as concurrently filed Form I-485 applications).
Additionally, if your work authorization was denied or revoked based upon the denial of the Form I-485, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary. If a decision cannot be rendered immediately on a reopened adjustment of status application, USCIS will either (1) immediately process any pending or denied application for employment authorization or (2) reopen and approve any previously revoked application for employment authorization. If USCIS has already obtained the applicant's biometric information at an Application Support Center (ASC), a new Employment Authorization Document (EAD) will be produced and delivered without any further action by the applicant. In cases where USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment.
If another type of petition or application (other than an I-130 petition or associated application) was denied based solely upon DOMA section 3, please notify USCIS by March 31, 2014, by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov as directed above. USCIS will promptly consider whether reopening of that petition or application is appropriate under the law and the circumstances presented.
No fee will be required to request USCIS to consider reopening your petition or application pursuant to this procedure. In the alternative to this procedure, you may file a new petition or application to the extent provided by law and according to the form instructions including payment of applicable fees as directed.
Changes in Eligibility Based on Same-Sex Marriage
Q6. What about immigration benefits other than for immediate relatives, family-preference immigrants, and fiancés or fiancées? In cases where the immigration laws condition the benefit on the existence of a "marriage" or on one's status as a "spouse," will same-sex marriages qualify as marriages for purposes of these benefits?
A6. Yes. Under the U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms "marriage" or "spouse". Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum. In all of these cases, a same-sex marriage will be treated exactly the same as an opposite-sex marriage.
Q7. If I am seeking admission under a program that requires me to be a "child," a "son or daughter," a "parent," or a "brother or sister" of a U.S. citizen or of a lawful permanent resident, could a same-sex marriage affect my eligibility?
A7. There are some situations in which either the individual's own marriage, or that of his or her parents, can affect whether the individual will qualify as a "child," a "son or daughter," a "parent," or a "brother or sister" of a U.S. citizen or of a lawful permanent resident. In these cases, same-sex marriages will be treated exactly the same as opposite-sex marriages.
Residency Requirements
Q8. Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?
A8. Yes. As a general matter, naturalization requires five years of residence in the United States following admission as a lawful permanent resident. But, according to the immigration laws, naturalization is available after a required residence period of three years, if during that three year period you have been living in "marital union" with a U.S. citizen "spouse" and your spouse has been a United States citizen. For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages.
Inadmissibility Waivers
Q9. I know that the immigration laws allow discretionary waivers of certain inadmissibility grounds under certain circumstances. For some of those waivers, the person has to be the "spouse" or other family member of a U.S. citizen or of a lawful permanent resident. In cases where the required family relationship depends on whether the individual or the individual's parents meet the definition of "spouse,' will same-sex marriages count for that purpose?
A9.Yes. Whenever the immigration laws condition eligibility for a waiver on the existence of a "marriage" or status as a "spouse," same-sex marriages will be treated exactly the same as opposite-sex marriages.
This information is provided by USCIS and can be found at their website www.Uscis.gov. This is information available to the public and is provided solely for informational purposes and does not constitute legal advice.
FAQs for Post-Defense of Marriage Act
Q: How does the Supreme Court's Windsor v. United States decision impact immigration law?
A: The Supreme Court has found section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Effective immediately, U.S. embassies and consulates will adjudicate visa applications that are based on a same-sex marriage in the same way that we adjudicate applications for opposite gender spouses. This means that the same sex spouse of a visa applicant coming to the U.S. for any purpose – including work, study, international exchange or as a legal immigrant - will be eligible for a derivative visa. Likewise, stepchildren acquired through same sex marriages can also qualify as beneficiaries or for derivative status.
Q: Do we have to live or intend to live in a state in which same sex marriage is legal in order to qualify for an immigrant or nonimmigrant visa?
A: No. If your marriage is valid in the jurisdiction (U.S. state or foreign country) where it took place, it is valid for immigration purposes. For more information, please review the following page on the United States
Citizenship and Immigration Service's (USCIS) website.
Q: I am in a civil union or domestic partnership; will this be treated the same as a marriage?
A: At this time, only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for immigration purposes.
Q: I am a U.S. citizen who is engaged to be married to a foreign national of the same sex. We cannot marry in my fiancé's country. What are our options? Can we apply for a fiancé K visa?
A: You may file a Form I-129F and apply for a fiancé(e) (K) visa. As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for the purpose of marriage. For information on adjusting status, please review the following page on USCIS's website:
Nonimmigrant Visas (NIVs)
Q: Can same sex couples now apply for visas in the same classification?
A: Yes. Starting immediately, same-sex spouses and their children are equally eligible for NIV derivative visas. Same-sex spouses and their children (stepchildren of the primary applicant when the marriage takes place before the child turns 18) can qualify as derivatives where the law permits issuance of the visa to a spouse or stepchild. In cases where additional documentation has always been required of a spouse applying with a principal applicant, such documentation will also be required in the case of a same-sex spouse (see below).
Q: Are there nonimmigrant visa classifications which will require approval of certain documentation before an interview can take place?
A: Yes. Same-sex spouses and stepchildren (F-2 and M-2) of student (F-1 and M-1) visa applicants will need to obtain an I-20A prior to application. Spouses (J-2s) of exchange visitors (J-1) visa holders will need an approved DS-2019. Finally, same-sex spouses of victims of criminal activity (U-2s) and human trafficking victims (T-2s) will require completed Supplement A to Form I-918 or I-914, respectively, before an officer approves any derivative cases. This additional documentation is also required for opposite gender
Immigrant Visas
Q: My foreign national spouse has children. Can they also be included with my spouse's case?
A: Yes, the children of foreign national spouses can be considered "step-children" of the U.S. citizens and can therefore benefit from a petition filed on their behalf in the IR2 category. In other categories, stepchildren acquired through same sex marriage can qualify as beneficiaries (F2A) or for derivative status (F3, F4, E1-E4, or DV). You and your spouse must have married before the child turned 18.
This information is provided by the U.S. Department of State and can be found at their website www.Travel.state.gov. This is information available to the public and is provided solely for informational purposes and does not constitute legal advice.
reviews
- If you have talked to other Immigration Attorneys Local and out of town I highly recommend you talk To Attorney Joe Luna Before you hire anyone else you will not regret it After years and money spent with no positive results Joe got me My rightful Benefit of being a US Citizen by son of Us citizen after over 20 yrs of other attorneys taking my money and not getting any results Joe saw the same paperwork I took to other attorneys and in less than 6 months I was at at Immigration office being Sworn in as a US Citizen don’t deny yourself of the best legal representation Give Joe Luna a call beyond thankful for what he did for me and my Family....- Carlos valdez. 1/29/2020
- A year ago, my wife and I went to Commonwealth Law Group to seek out the assistance of Joe Luna in order to adjust status here in the US. Hand on my heart, there was no one better for the job. My wife and and I are so grateful to him and his team at Commonwealth. From the beginning, he was patient and understanding, answering all our questions and meeting with us frequently. We felt like he always put us first and is very diligent. Joe is very knowledgeable when it comes to immigration issues. Believe me, he's the guy you want on your team. We will definitely go back to him when it comes to removing conditions on our green card.- P&I Case. 1/7/2020
- This law firm is efficient and responsible always provide the best service and care for their customers. Always look for the solution to the problem you have. I say this from experience, when they denied me the procedures of my residence, they quickly acted in resolving my case and why I had been denied. Especially Mr. Luna sought the quickest and most effective solution for this to be solved and we had an answer as soon as possible. Thanks to him Mr. Luna my case was resolved satisfactorily I recommend them.- Brian Vazquez. 5/13/2019
- I recommend Joe Luna he’s the best lawyer!! In my case that I had before him I had 2 other lawyers and they never helped me and they would just give me a hard time until I found Joe Luna. He always told me to have trust in him and he would resolve my case without any problem and in about 5 months I got my green card and got accepted. Thank you for everything Sir Luna for being honest and professional. God bless you and your family for being a human being with a great heart and a great lawyer.- angel g torres. 4/30/2019
- We highly recommend Mr. Luna's service. We are happy with Mr. Luna's professional service and dedication. He was very responsive and fast. He is knowledgeable, trustworthy and an experienced lawyer. It was nice to have him as our lawyer from the beginning of the application until the interview process. Mr. Luna's interview preparation was very helpful and his presence during the final interview was professional as a lawyer and comforting as a person. He made us feel confident and secure. Thank you for your service and best wishes for your future clients.- Sokono Soko. 4/14/2019
- Joe Luna personally got my family through a tough citizenship application process successfully. My family and I are very fortunate to be where we are because of all his hard professional work. I highly recommend him and his team for all your immigration needs. If there’s a way he’ll find it. Thanks Joe. Jorge and José Santos- Jorge Santos. 5/5/2018
- Very thankful with Mr. Luna, helped me and my wife obtain our greencards in a very professional way and timely manner. Absolutely great full with him and his whole team, amazing people to work with, akways there to help and treat you like part of their family. They treat your case as if their own personal case and very proffesional in every sence of the word. WILL ALWAYS RECOMMEND TO ANYONE AND HAPILY USE HIM IF NEED BE IN THE FUTURE ONCE AGAIN!!- Jorge Gonzalez. 2/14/2018
- My husband had a very unique case. It was taking forever. Atty Luna was very helpful and patient with us during the process. We we not happy with the first attorney and were thrilled when Atty. Luna took over. He explained everything and made sure that we understood what was happening. Thanks to his help my husband's green card was reinstated and we are awaiting his citizenship approval.- H M. 1/17/2018
- My first consultation with the immigration attorney was free. He and his assistant spent close to an hour with my husband and me, explaining the process involved in completing the requirements for permanent residency status as a Native American born in Canada. Where to begin, what to do, what not to do. What they will do, how long it will take and what it will cost. I feel confident that Mr. Shaeffer will handle every detail of my case competently and wisely. He has more than expertise in his field, he is also charismatic and likable. I would not hesitate to recommend him to a friend.- Cynthia Bennett. 0/16/2013
- After several years trying to get our ducks in order for a greencard and not having much success, we were recommended by a friend to try Commonwealth Law Group. As they were conveniently located in Rancho Mirage, we wasted no time in setting up interviews...etc We were pleased that they actually offered us two different ways we could go about getting the permanent residency. One short year later we received our cards in the mail. Thanks to Comonwealth Law Group and its team in Rancho Mirage for affording us the opportunity to get our residency. Their initiative, enthusiasm, knowledge of the system and great work were the key factors in our success. RRV- Raoul Vanier. 11/10/2012
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