Stepping Up: Federal Immigration Agencies begin Implementing Windsor on LGBTQ Issues
By James Sellars
Earlier this month, Lexology published an article discussing the recent steps taken by federal agencies to align the Nation’s immigration policies with the recent Supreme Court ruling in U.S. v. Windsor. The article, written by Helen Pihlstrom, gave an in-depth analysis on the preliminary efforts taken by various governmental agencies to ensure that their administrative frameworks conform to the aforementioned ruling. Pihlstrom’s article primarily focuses on the efforts of the U.S. Citizenship and Immigration Service (U.S.C.I.S.) and the State Department.
On July 1st, 2013, DHS Secretary Janet Napolitano gave the order to the U.S. Citizenship and Immigration Services (USCIS) to immediately begin reviewing family petitions filed in favor of same-sex spouses, emphasizing that these applications should be handled in the same manner as applications for heterosexual couples. In her article, Pihlstrom discusses some of the formal steps that U.S.C.I.S. has recently taken in order to implement Napolitano’s July 1st directive. For example, U.S.C.I.S. recently announced that individuals may now seek all applicable immigration benefits for same-sex spouses, including immigrant visa applications, fiancé/fiancée petitions, and other benefits without waiting for further official guidance or forms. Moreover, U.S.C.I.S. has decided to re-open and reconsider cases that were denied based on the Defense of Marriage Act. This decision is likely to create a need for more detailed administrative guidelines on how to review previously denied cases.
One of the major policy questions to come out of the DOMA decision is how to treat individual applicants who reside in one of many states that do not recognize same-sex marriages? Pihlstrom does an excellent job in explaining how U.S.C.I.S. plans to deal with this lingering question. According to her, U.S.C.I.S. will consider the law of the place where the marriage was celebrated when making a determination about whether the marriage is legally valid for immigration purposes. This includes marriages that are performed in countries that legally recognize same-sex marriages.
This article concludes by discussing some of the recent steps taken by the State Department in implementing the Supreme Court’s ruling on DOMA. On August 2, Secretary of State John Kerry announced that U.S. consulates would begin processing visa applications on behalf of same-sex spouses. Since then, Immigration and Customs Enforcement’s Student and Exchange Visitor Program (SEVP) provided additional guidance on the issuance of I-20 Forms for international students. Pihlstrom explains that the August 5th guidance provides for Designated School Officials at U.S. universities to issue I-20 Forms for same-sex dependent spouses of F-1 or M-1 student visa holders. Similar to the new U.S.C.I.S. determinations, school officials are required to verify the validity of the same-sex marriage by determining if the marriage is valid in the place of celebration. Although implementation of the Windsor decision is still in its early stages, the progress thus far is extremely encouraging for proponents of LGBTQ rights.