State Dept. Releases Cable, FAQ on DOMA

The Department of State recently released a FAQ and a cable to the field, “Next Steps on DOMA—Guidance for Posts.” The cable notes that beginning immediately, consular officers should review visa applications filed by same-sex spouses in the same manner as those filed by opposite-sex spouses, “unless a specific provision of the federal immigration laws requires a different approach.”

The cable notes that the Visa Office deleted a provision in the Foreign Affairs Manual that defined “marriage” for immigration purposes to mean “only a legal union between one man and one woman as husband and wife,” and the word “spouse” to mean only “a person of the opposite sex who is a husband or a wife.” A same-sex marriage is now valid for immigration purposes “as long as the marriage is recognized in the ‘place of celebration,'” the cable states. Such marriages are valid for immigration purposes “even if the couple intends ultimately to reside in one of the 37 states that do not recognize same-sex marriages. Same-sex marriages are valid “even if the applicant is applying in a country in which same-sex marriage is illegal.”

The Department is asking consular sections to identify what types of marriages are available for same-sex couples in-country and to update the visa reciprocity tables.

Also, the cable notes that beginning “immediately,” same-sex spouses and their children are equally eligible for nonimmigrant 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 without being named on a petition (or if a petition is not required). This includes Diplomat (A), Commonwealth of the Northern Mariana Islands transitional worker (CW), treaty trader/investor (E), international organization employee (G), temporary worker (H), information media representative (I), intracompany transferee (L), North Atlantic Treaty Organization (NATO), extraordinary ability (O), entertainer and athlete (P), religious worker (R), and North American Free Trade Agreement (TN – Trade National) visa categories. If an applicant is otherwise qualified, the cable states, “he/she may be issued a derivative visa starting now.”

Among other things, the cable also notes that many same-sex couples live abroad in countries where they are unable to marry. Starting immediately, same-sex partners of U.S. citizens may apply for fiancé(e) nonimmigrant K-1 visas to wed in the United States, the cable states. Once the union is contracted in a state permitting same-sex marriage, the foreign spouse may apply for adjustment to legal permanent resident status through U.S. Citizenship and Immigration Services (USCIS), or the U.S. citizen may file an I-130 with USCIS. A significant portion of same-sex partners intending to immigrate to the United States may use fiancé(e) visas, the cable notes.