Secretary of State John Kerry on Friday appeared at the US consulate in London and announced that the Department of State would begin treating same-sex couples the same way as heterosexual couples.
“If you are the spouse of a U.S. citizen, your visa application will be treated equally,” Kerry said. “If you are the spouse of a non-citizen, your visa application will be treated equally. If you are in a country that doesn’t recognize your same-sex marriage, then your visa application will still be treated equally at every single one of our 222 visa processing centers around the world.”
The Department of State (DOS) also released FAQs on implementing the Windsor decision at consular posts. The FAQs echo the rules announced by U.S. Citizenship and Immigration Service (USCIS), specifically that as long as a marriage was valid where celebrated, it doesn’t matter whether the country of residence recognizes the marriage. It also specifies that children of such relationships can qualify as “step-children” and be sponsored for immigration benefits by the US citizen or lawful permanent resident spouse.
In the complicated world of immigration, DOS is responsible for deciding applications of non-immigrant visas (such as work visas and visas for spouses or children of visa holders), Diversity Visa lottery winners, and conducting visa interviews once spousal petitions or fiancé visas have received an initial approval by USCIS.
The DOS FAQs come exactly one week after the USCIS FAQs. In both web pages the most important message is, simply, — treat same-sex married couples the same as different-sex married couples and adjudicate their applications now. Last week’s USCIS FAQs also stated that USCIS would reopen applications that were previously denied under DOMA without requiring further applications or fees. Because marriage-based petitions for lawful permanent resident status are initially reviewed by USCIS, there’s no need for DOS to have a similar reopening procedure, which is why it’s not addressed in the DOS FAQs.
As a result of USCIS’s reopening policy, seven of Immigration Equality’s clients, including all five plaintiff couples in our own DOMA lawsuit, have had their previously denied I-130s reopened, and two have already been granted!
We have not yet solved every issue for all couples — we are hearing that Customs and Border Protection agents are still awaiting guidance and may not allow same-sex spouses to enter the US in derivative status. Likewise, we continue to be concerned about how DOS will handle safety issues for marriage-based benefits filed for noncitizens in countries that criminalize same-sex relations. Immigration Equality will continue to push every agency until all couples are able to access the benefits that they are entitled to under the law.
But for now, today is another day to celebrate.