Immigration law in the United States is governed by federal law. Currently, federal law does not recognize same-sex marriages as the basis for immigration or any other benefits. If you are a U.S. citizen or lawful permanent resident (LPR or "green card holder") and you submit an immigration petition (Form I-130) on behalf of your same-sex partner, U.S. Ciitzenship and Immigration Services (USCIS) will undoubtedly deny the petition.
However, the law in this area is the subject of constant discussion, and some beneficial policy changes have been put into place, as described below.
How the Federal Defense of Marriage Act Restricts Same-Sex Marriage Rights
The federal Defense of Marriage Act (DOMA) defines marriage as solely consisting of a union between a man and a woman. This is the law that the USCIS will consider when determining what is a marriage. Although numerous U.S. states recognize same-sex marriages or civil unions, USCIS, which is governed by federal laws, is under no obligation to confer benefits accordingly.
However, the USCIS position doesn't mean you and your same-sex spouse should give up on the idea of getting married. As described below, a same-sex marriage may at least protect the foreign-born partner from deportation (removal) in some situations.
Prosecutorial Discretion and Same-Sex Partners
In 2011, U.S. Immigration and Customs Enforcement (ICE) implemented a new policy to help it prioritize which types of cases it would pursue when attempting to deport (remove) undocumented or otherwise deportable aliens from the United States. Its director announced that for non-criminals who have longstanding or deep ties to the United States, including family ties, and who are pursuing an education or making contributions to U.S. society, ICE agents should back off and focus their deportation efforts elsewhere. The policy didn't mention same-sex couples, but it has since been extended to include them among the "family" whose ties should be given weight to.
In fact, if the exercise of prosecutorial discretion is made official, through an "administrative closure" of a removal case that was in the immigration court system, the foreign national may apply for a U.S. work permit. Still, this is only a temporary status, does not lead to a green card, and means that the removal proceedings are only put on hold for an indeterminate time. For details, see "Prosecutorial Discretion and Work Permits for Gay or Lesbian Partners of U.S. Citizens."
Getting Legal Help
The law and policy in this area is shifting day by day. If you are part of an international same-sex couple, talk to an experienced U.S. immigration attorney. The attorney can advise you on the latest developments and your immigration options. It's possible that your foreign same sex partner may be eligible for immigration on other grounds, such as an employment-based visa or asylum. However, the longer you wait, the more difficult it becomes to claim these options, because of the penalties placed upon people who accrue unlawful presence in the United States. For details on this issue, see "Immigrant Inadmissibility to the U.S."
