BIA reverses denial of I-130 petition filed on behalf of same-sex spouse

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BIA reverses denial of I-130 petition filed on behalf of same-sex spouse

July 25, 2013

The Board of Immigration Appeals has just released its first decision after the United States Supreme Court’s recent decision (United States v. Windsor, 133 S. Ct. 2675 (2013)) that found a significant portion of the Defense of Marriage Act unconstitutional. In Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013) the Board held that Section 3 of the Defense of Marriage Act (the portion overturned by the US Supreme Court) is no longer a bar to the recognition of lawful same-sex marriage petitions. Therefore, pursuant to the Immigration and Nationality Act, if a same-sex marriage is valid under the laws of the state or country where it was celebrated, USCIS is required to treat it as any other marriage.

Same-sex marriages and relationships are also going to be treated equally for purposes of waivers of inadmissibility qualifying relatives, fiancée visa petitions, defenses from removal, and any other immigration matter where marital status is significant. The usual requirements of showing that the marriage is bona fide, or legitimate, will still apply. Even in states that do not permit same-sex marriages, legal same-sex marriages performed in other states or countries will still be recognized by USCIS offices located in those states that have yet to legalize same-sex marriages.