In a published decision reached today, the Board of Immigration Appeals recognized the validity of same
sex marriage for the purpose of the immigration laws.
In Matter of Zeleniak, a male U.S. citizen spouse married his male alien spouse in the state of Vermont. The U.S. citizen spouse filed an I-130 Petition on behalf of his husband with the United States Citizenship and Immigration Service. The petition was denied on the ground that their same sex marriage does not qualify as a “marriage” under the U.S. immigration laws.
The Board, noting the Supreme Court’s recent decision in United States v. Windsor, found that their same sex marriage is indeed valid under the immigration laws. The Board noted that I-130 Petitions filed on the basis of same sex marriages will be reviewed just like I-130 Petitions filed on the basis of heterosexual marriages. The same sex couple will have to show that their marriage is valid in their particular state and that their marriage is bona fide.
Significantly also, the Board noted that same sex marriages will be recognized in every aspect of the immigration laws, including in the context of fiancé visas and immigrant visa petitions. Same sex spouses can now also serve as qualifying relatives for waiver applications and for relief before the Immigration Court.
In short, the recent repeal of the Defense Against Marriage Act has opened the door for an entirely new group of persons to seek immigration benefits and rights.
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