State Department clarifies policy on same sex couples and immigration visas

On Thursday, Secretary of State John Kerry noted a huge policy change regarding same sex couples and their ability to apply for immigration visas.  One of the big benefits of marrying a U.S. citizen is that the citizen can file a family petition for their immigrant spouse to get a coveted Green Card that would allow the non-citizen spouse to remain permanently and legally in the United States.  The Green Card status, or lawful permanent resident status, also puts the person on a path to citizenship and they are eligible to apply for naturalization within 5 years.  Prior to Kerry's confirmation, this benefit was only available to straight married couples.

After the Supreme Court struck down the Defense of Marriage Act as unconstitutional in U.S. v Windsor 2 months ago, there was widespread excitement among the LGBT community with many couples showing up at U.S. embassies around the world to apply for visas.  They were turned away by State Department officials pending an official policy proclamation.  That announcement was made on Thursday when Secretary Kerry stated that the State Department" was “tearing down an unjust and an unfair barrier that for too long stood in the way of same-sex families being able to travel as a family to the United States."  While in London, Secretary Kerry also clarified the following:

If you are the spouse of a U.S. citizen, your visa application will be treated equally. 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"

If the marriage is valid in the jurisdiction in which it was performed, either in the U.S. or outside among the 17 different countries around the world that now have legalized same sex marriage, that marriage is eligible for U.S. immigration spousal petitions.

This policy change stands in stark contrast to the 36 states in the United States that have passed legislative bans on gay marriage.  That view's days are numbered, although in a federal system like ours, it may be awhile before equality is spread to those states as well since the DOMA Supreme Court case is limited to defining under federal law the meaning of marriage.  Recall that in the same term, the Court's ruling in Hollingsworth v Perry essentially had the effect maintaining the status quo that states retain the right to define the definition of marriage even though the Court declined to directly rule on that question.