State Department Revises Visa Policies To Afford Protections to Same-Sex Couples

August 2nd, 2013

Following the Supreme Court’s decision in Windsor, the State Department has modified policies concerning Visas, such that same-sex couples are treated the same for all purposes of the law.

The United States will treat the visa applications of same-sex married couples in the same manner as opposite-sex spouses, Secretary of State John Kerry said Friday, announcing a policy change set in motion in June, after the Supreme Court struck down a law against same-sex marriage.

The policy change, which will take effect immediately, will apply to American citizens as well as foreign same-sex couples, dependent only on the marriage having taken place in a jurisdiction that recognizes same-sex marriage.

“Effective immediately, when same-sex spouses apply for a visa, the Department of State will consider that application in the same manner that it will consider the application of opposite-sex spouses,” Mr. Kerry announced at the American Embassy here.

Here is the guidance from State:

Q: How does the Supreme Court’s Windsor v. United States decision impact immigration law?

A: The Supreme Court has found section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Effective immediately, U.S. embassies and consulates will adjudicate visa applications that are based on a same-sex marriage in the same way that we adjudicate applications for opposite gender spouses.   This means that the same sex spouse of a visa applicant coming to the U.S. for any purpose – including work, study, international exchange or as a legal immigrant – will be eligible for a derivative visa.  Likewise, stepchildren acquired through same sex marriages can also qualify as beneficiaries or for derivative status.

Q: Do we have to live or intend to live in a state in which same sex marriage is legal in order to qualify for an immigrant or nonimmigrant visa?

A: No. If your marriage is valid in the jurisdiction (U.S. state or foreign country) where it took place, it is valid for immigration purposes.  For more information, please review the following page on the United States

As Windsor continues to trickle out, other aspects of federal law will react. It’s unclear how this affects cases of asylum.

In May, Democrats,including Diane Feinstein and Chuck Schumer–to much controversy–voted against an amendment that would have inserted a provision in the immigration bill to recognize Same-Sex couples. In voting against it, Feinstein hoped that the Supreme Court would bail them out.

Sen. Dianne Feinstein cited Graham’s comments, then, saying, “I think this sounds like the fairest approach, but here’s the problem … we know this is going to blow the agreement apart. I don’t want to blow this bill apart.”

She cited the fact that the Supreme Court could strike down the Defense of Marriage Act provision that prevents same-sex couples from having equal immigration rights. She also noted the a bill to repeal DOMA is holding in the Senate, concluding, “I would just implore to hold up on this amendment at this time.”

I don’t know that this other shoe has dropped yet, but in light of the State Department’s announcement, this change is inevitable. And no need for  any politicians to put their necks on the line with tough votes for something they believe in.