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STUART F. DELERY Acting Assistant Attorney General AUGUST E. FLENTJE Senior Counsel for Immigration DAVID J. KLINE Director, Office of Immigration Litigation District Court Section JEFFREY S. ROBINS Assistant Director AARON S. GOLDSMITH (VSB No. 45405) Senior Litigation Counsel P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 532-4107 Facsimile: (202) 305-7000 Email: aaron.goldsmith@usdoj.gov TIMOTHY M. BELSAN Trial Attorney Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ) ) Plaintiffs, ) ) v. ) ) JANET NAPOLITANO, Secretary, ) Department of Homeland Security, ) et al., ) Defendants. ) ______________________________ ) MARTIN ARANAS, et al., No. 8:12-cv-1137-CBM (AJWx) DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO MODIFY STAY AND RECONSIDER MOTION FOR PRELIMINARY INJUNCTION Hearing: Time: Judge: August 19, 2013 10:00 a.m. Hon. Consuelo Marshall

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Since this action was commenced on July 12, 2012, the Supreme Court has held that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. See United States v. Windsor, 133 S. Ct. 2675 (2013). Not only is the Executive Branch no longer applying Section 3 of DOMA, it is working expeditiously to implement the Windsor decision across the federal government. As a result, the Defendants are already providing the relief sought by Plaintiffs in this action. Specifically, the Department of Homeland Security (DHS) is evaluating all immigration petitions and applications, including I-485 applications for adjustment of status, without regard to Section 3 of DOMA. See http://www.dhs.gov/topic/implementation-supreme-court-ruling-defense-marriageact; see also In re Zeleniak, 26 I. & N. Dec. 158, 159 (B.I.A. 2013) (holding that Section 3 of DOMA is no longer an impediment to the recognition of lawful samesex marriages if the marriage is valid under the laws of the State of celebration).

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Additionally, DHS recently announced that it is reopening prior applications that were denied solely on the basis of Section 3 of DOMA, without charging a fee to applicants. See Same-Sex Marriages- Frequently Asked Questions (cited hereafter as Guidance Regarding Reopening) pp. 1-2, available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a/?vgnextoid=2543215c310af310VgnVCM100000082ca60aRCRD&vgnextcha nnel=2543215c310af310VgnVCM100000082ca60aRCRD.1 If an applicants work authorization was denied or revoked based upon the denial of the I-485 application, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary. See id. The decision to reopen petitions and applications that were denied solely based on On July 26, 2013, Defendants counsel attempted to confer, by telephone and email, with Plaintiffs counsel regarding this new procedure but did not receive a response from Plaintiffs counsel prior to this filing. 2
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Section 3 of DOMA effectively remedies any accrual of unlawful presence under 8 U.S.C. 1182(a)(9)(B)(i) resulting directly from the denial of the petition or application based solely on Section 3 of DOMA. As a result, this Court need not grant any of Plaintiffs motions, as the relief sought is already being provided by Defendants. Plaintiffs filed this suit primarily to obtain interim relief pending the Supreme Courts resolution of the constitutionality of Section 3 of DOMA. This Court denied that request for preliminary relief, and the Supreme Court has now held Section 3 of DOMA unconstitutional. There is no reason to reconsider the grant of preliminary relief given that Section 3 of DOMA is no longer being applied. Considering this request for preliminary relief is particularly unneeded now that Plaintiffs have subsequently moved for summary judgment and a permanent injunction.

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On April 19, 2013, this Court denied Plaintiffs request for a preliminary injunction because Plaintiffs failed to show that same-sex couples would suffer future irreparable harm in the absence of a preliminary injunction. See Dkt. 128, pp. 7-8 (While DeLeon and the plaintiff class have undeniably been harmed by the potentially unconstitutional application of DOMA 3 to their immigration petitions, it is less clear whether any members of the plaintiff class are likely to suffer irreparable injury pendente lite.). Now, after the Supreme Court has declared Section 3 of DOMA unconstitutional and the Executive Branch has stopped enforcing that statutory provision, Plaintiffs seek reconsideration of this Courts April 19 order denying their Motion for Preliminary Injunction. See Dkt. 132. Specifically, Plaintiffs seek an injunction: (i) restraining Defendants from deeming class members presence in the United States unauthorized for purposes of 8 U.S.C. 1182(a)(9)(B) pending reopening and adjudication of their applications and petitions, and, for the first time (ii) an order vacating the denials 3

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of Plaintiffs employment authorization and granting such applications pending reopening. Id., p. 3.2 Given recent events, this Courts action on Plaintiffs renewed motion for a preliminary injunction is no longer necessary for several reasons. First, in light of the Windsor decision, Plaintiffs claims are moot. Second, Plaintiffs have now moved for summary judgment and permanent injunctive relief and scheduled that motion for a hearing on the same date as their request for preliminary relief making it unnecessary for this Court to consider their earlier-filed request for preliminary relief. See, e.g., Dex Media West, Inc. v. City of Seattle, 696 F.3d 952, 956 n.1 (9th Cir. 2012) (Because we now rule on the merits of the case, deciding the preliminary injunction appeal would have no practical consequences.); U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1093 (9th Cir. 2010) (A preliminary injunction . . . dissolves ipso facto when a

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final judgment is entered in the cause.); Sec. & Exch. Comm. v. Mt. Vernon Meml Park, 664 F.2d 1358, 1361 (9th Cir. 1982) (dismissing appeal of preliminary injunction). Third, Plaintiffs cannot demonstrate future irreparable harm in the absence of a preliminary injunction because the Executive Branch is no longer applying Section 3 of DOMA. See Zeleniak, 26 I. & N. Dec. at 159. Moreover, as DHS recently announced, the agency is reopening applications and petitions that were previously denied based on Section 3 of DOMA. See Guidance Regarding Reopening, p. 1. Reopening all of these applications and petitions cures any

To be clear, there are individuals in same-sex marriages who have filed actions in other federal district courts seeking retrospective relief with respect to denials of immigration benefits based on Section 3 of DOMA. This Court has previously provided notice to the plaintiffs in one such action, Blesch v. Holder, No. 12-cv1578 (E.D.N.Y.), that was filed before this action was commenced. See Dkt. 111. 4

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injuries suffered by class members. Id. That action eliminates any need for preliminary relief. Fourth, an order granting work authorization is unwarranted because it is outside the scope of the relief sought in this suit or addressed in this Courts preliminary injunction ruling, and it is unnecessary because DHS is currently reopening denied applications for adjustment of status and either acting on them immediately or immediately processing any related application for employment authorization. See Guidance Regarding Reopening, p. 1. Fifth, there is no basis for enjoining DHS with respect to the accrual of unlawful presence because DHSs decision to reopen denied petitions and applications effectively remedies prior accrual of unlawful presence for purposes of 8 U.S.C. 1182(a)(9)(B)(i) resulting directly from the denial of the petition or application based on Section 3 of DOMA and renders this claim moot.

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Sixth, to the extent that there are any issues remaining as to how to unwind Section 3 of DOMA, this Court should decline to exercise judicial authority over these issues for the prudential reasons that this Court has previously recognized. See Dkt. 128, p. 7. For these reasons, as more fully set forth below, this Court should deny Plaintiffs request for reconsideration of the denial of their motion for preliminary injunction. Argument 1. This action is moot and should be dismissed for lack of jurisdiction. As more fully set forth in Defendants Opposition to Plaintiffs Motion for Summary Judgment that is being filed contemporaneously, Plaintiffs claims are moot and, as a result, this action should be dismissed for lack of subject matter jurisdiction. Because this Court lacks jurisdiction, there is no reason to address Plaintiffs Motion for Reconsideration. 5

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2.

There is no need to reconsider a preliminary injunction in light of Plaintiffs pending motion for summary judgment. A preliminary injunction would have no practical consequences given

Plaintiffs motion for summary judgment on the merits, which is currently before this Court. See, e.g., Dex Media West, 696 F.3d at 956 n.1 (dismissing appeal of preliminary injunction as moot); see generally, Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984) (A preliminary injunction . . . is not a preliminary adjudication on the merits but rather a device for preserving the status quo and preventing the irreparable loss of rights before judgment). There is simply no reason for this Court to even reconsider Plaintiffs motion for preliminary injunction at this time. Instead, this Court should expend its resources resolving Plaintiffs motion for summary judgment. To that end, Defendants agree that there are no factual issues in dispute and that this case is ripe for disposition on

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the merits. Moreover, the Supreme Court has already decided, on the merits, the ultimate question in this action whether Section 3 of DOMA is constitutional. See Windsor, 133 S. Ct. 2675. As a result, there is no need to preserve the relative positions of the parties pending a judicial resolution of the constitutionality of Section 3 of DOMA. See Sierra On-Line, 739 F.2d at 1422. 3. Plaintiffs cannot establish future irreparable injury because the Executive Branch is no longer enforcing Section 3 of DOMA. On April 19, 2013, this Court denied Plaintiffs motion for a preliminary injunction on the grounds that they failed to meet their burden of establishing future irreparable harm.3 See Dkt. 128, pp. 7-8. This Court explained that a Plaintiffs waited over two months from the April 19, 2013 decision until July 8, 2013 to seek reconsideration. Dkt. 132. This delay further undercuts any argument that they will suffer immediate irreparable harm without a preliminary 6
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preliminary injunction is unnecessary where no new harm is imminent. See Dkt. 128, p. 7, citing Oakland Tribune, Inc. v. Chronicle Publg Co., 762 F.2d 1374, 1377 (9th Cir. 1985). Here, there can be no new harm because the Supreme Court has already found Section 3 of DOMA unconstitutional and, as a result, the Executive Branch is not enforcing it. See Zeleniak, 26 I. & N. Dec. at 159. The bulk of Plaintiffs Motion for Reconsideration challenges the adequacy of the administrative remedy of deferred action. See Dkt. 132-1, pp. 6, 9-17, 1920. This issue is now moot. Because Section 3 of DOMA is no longer being enforced, there is no longer any need for same-sex couples to seek deferred action. See Zeleniak, 26 I. & N. Dec. at 159. The question of whether deferred action was an adequate administrative remedy prior to the Windsor decision is simply not a live case or controversy. 4. Plaintiffs are not entitled to a preliminary injunction with respect to employment authorization, especially because DHS is currently granting, without a court order, work authorization to applicants whose applications were denied solely based on Section 3 of DOMA. As a threshold matter, a litigant is not permitted to use a motion for preliminary injunction to seek a form of relief that is outside the scope of the complaint. See generally, De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945) (finding that the preliminary injunction at issue was not of the same character as the final relief sought and dealt with a matter wholly outside the issues in the suit); Kaimowitz v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir. 1997) (A district court should not issue an injunction when the injunction in question is not of the same character, and deals with a matter lying wholly outside the issues

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injunction. This delay cannot be attributed to the Notice provided by DHS on April 26, 2013, more than two months before Plaintiffs sought reconsideration. See Dkt. 131. 7

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in the suit.). Because Plaintiffs Complaint does not seek an order compelling DHS to vacate prior denials or compel DHS to grant employment authorization, such a claim is outside the scope of this suit. See Dkt. 1, pp. 29-30 (Prayer for Relief, in which Plaintiffs only sought prospective relief including specifically a temporary injunction enjoining Defendants from revoking or denying employment authorization to plaintiffs DeLeon and Ara[a]nas and those similarly situated (emphasis added)). Similarly, a litigant is not entitled to seek new relief through a motion for reconsideration. See L.R. 7-18 (stating the bases for a motion for reconsideration). Because Plaintiffs are improperly using a motion for reconsideration to seek a new form of relief with respect to employment authorization that was not sought in their initial motion,4 their motion should be denied. More importantly, DHS recently announced that if an applicants work

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authorization was denied or revoked based solely on Section 3 of DOMA, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary. See Guidance Regarding Reopening, p. 1. And if a decision cannot be rendered immediately on a reopened adjustment of status application, DHS will either (1) immediately process any pending application for employment authorization or (2) reopen and approve any previously denied or revoked application for employment authorization. See id. Thus, applicants will receive employment authorization immediately without the need of a court order. Since this new policy for issuing work authorization in The relief sought in Plaintiffs initial Motion for Preliminary Injunction was summarized by this Court as an order enjoining Defendants from denying employment authorization to plaintiffs DeLeon, Ara[a]nas and unnamed members of the plaintiff class. Dkt. 128, p. 3 (emphasis added); see also Dkt. 12, p. 3 (seeking prospective relief only with respect to employment authorization).
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previously denied cases was issued just last week, to the extent that the Court wishes to retain jurisdiction over this case, the government can provide the Court a status report on its implementation prior to this Courts hearing scheduled for August 19, 2013. 5. Plaintiffs are not entitled to a preliminary injunction with respect to the accrual of unlawful presence, especially because DHSs decision to reopen previously denied applications remedies any accrual of unlawful presence. Section 1182(a)(9)(B)(i) potentially5 renders inadmissible for either three or ten years certain aliens who have accrued more than 180 days of unlawful presence in the United States and subsequently depart from the United States. See 8 U.S.C. 1182(a)(9)(B)(i); see In re Rodarte-Roman, 23 I. & N. Dec. 905, 906 (B.I.A. 2006) (bar on re-entry is not triggered until alien departs). The filing of an I-130 has no effect on the accrual of unlawful presence; instead, it is the existence of a pending I-485 adjustment of status application that halts the accrual of unlawful presence. Under long-standing DHS policy, no alien, regardless of his or her actual immigration status, accrues unlawful presence while he or she has pending a properly filed I-485 application for adjustment of status. U.S. Citizenship and Immigration Services Interoffice Memorandum, dated May 6, 2009, from Donald Neufeld to Field Leadership (hereafter cited as Neufeld Memorandum) p. 3, available at http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/rev ision_redesign_AFM.PDF. If a motion to reopen is granted, the proceeding, by DHS has the discretion to waive these bars on re-entry under certain circumstances. See 8 U.S.C. 1182(a)(9)(B)(v); see also 8 C.F.R. 212.7(a), (e). In addition, although a motion to reopen or reconsider the denial by an alien would not normally stop the accrual of unlawful presence, U.S. Citizenship and Immigration Services [may] direct[] otherwise. See 8 C.F.R. 103.5(a)(1)(iv).
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definition, is reopened. See 8 U.S.C. 103.5(a)(4) (Where a motion to reopen is granted, the proceeding shall be reopened.). Thus, once DHS reopens an I-485 application, the I-485 application will be deemed to be pending. In turn, that person, because the I-485 application is pending, is protected from accrual of unlawful presence from the original date the I-485 application was properly filed until there is a final decision denying it. Neufeld Memorandum, p. 34. Thus, reopening an I-485 application will, in effect, erase any unlawful presence that may have accrued between the date of the original denial and the date of reopening. If DHS grants an aliens I-485 application for adjustment of status, the applicant, of course, will be an alien lawfully admitted for permanent residence, and the unlawful presence bars no longer apply. See 8 U.S.C. 1182(a)(9)(B)(i) (excluding from its scope an alien lawfully admitted for permanent residence). And even if DHS again denies the Form I-485, unlawful presence will begin to

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accrue only once the denial becomes final. Neufeld Memorandum, p. 34. In particular, if the applicant is able to renew the application in immigration court, the applicant will continue to be protected against accrual of unlawful presence until there is a final administrative decision denying the I-485 application. Id. Neufeld Memorandum, p. 3. Thus, there is no need for this Court to grant retroactive relief with respect to unlawful presence because DHS is already granting such relief without a court order. 6. Even if there were outstanding issues regarding how the Executive Branch should implement the Windsor decision in discrete situations, this Court should decline to exercise jurisdiction over these issues for prudential reasons. As this Court previously observed, the doctrine of prudential mootness urges the Judiciary to decline the exercise of its authority when co-equal branches of

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government are actively changing a challenged practice. Dkt. 128, p. 7, (citing, inter alia, Penthouse Intl, Ltd. v. Meese, 939 F.2d 1011, 1019 (D.C. Cir. 1991)). The doctrine comes from the Supreme Courts decision in A.L. Mechling Barge Lines, Inc. v. United States, in which the Supreme Court declined to adjudicate the case because [t]he Commission . . . represents that it has amended its practice accordingly. It thus appears that one of the continuing practices whose validity appellants would have us adjudicate continues no longer. Dkt. 128, p. 7 (citing 368 U.S. 324, 330-31 (1961)). Here, Section 3 of DOMA has already been ruled unconstitutional by the Supreme Court. See Windsor, 133 S. Ct. 2675. As a result, the challenged practice the enforcement of Section 3 of DOMA has ceased. DHS has taken significant steps in changing its immigration-related procedures in light of the Windsor decision, including steps that resolve all of the claims raised by Plaintiffs here. See

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http://www.dhs.gov/topic/implementation-supreme-court-ruling-defense-marriageact; Zeleniak, 26 I. & N. Dec. at 159. For this additional reason, this Court should decline to order injunctive relief at this time. See generally, Li v. Kerry, 710 F.3d 995, 1004 (9th Cir. 2013) (explaining in the context of an action under the Administrative Procedure Act that courts have no authority to compel agency action merely because the agency is not doing something we may think it should do). Conclusion WHEREFORE, this Court should deny Plaintiffs Motion for Reconsideration.

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Dated: July 29, 2013

Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General AUGUST E. FLENTJE Senior Counsel for Immigration DAVID J. KLINE Director, Office of Immigration Litigation JEFFREY S. ROBINS Assistant Director s/ Aaron S. Goldsmith AARON S. GOLDSMITH Senior Litigation Counsel District Court Section Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Attorneys for Defendants

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USCIS - Same-Sex Marriages Page 1 of 2 Case 8:12-cv-01137-CBM-AJW Document 146-1 Filed 07/29/13 Page 1 of 2 Page ID #:3424
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Home > Family > Same-Sex Marriages

Same-Sex Marriages
Statement from Secretary of Homeland Security Janet Napolitano on July 1, 2013: After last weeks decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.

Frequently Asked Questions

Petitioning for my Spouse Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa? A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouses admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same -sex nature of your marriage. Q2. I am a U.S. citizen who is engaged to be married to a foreign national of the same sex. Can I file a fianc or fiance petition for him or her? A2. Yes. You may file a Form I-129F. As long as all other immigration requirements are met, a same-sex engagement may allow your fianc to enter the United States for marriage. Q3: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse? A3: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward. Applying for Benefits New Applications and Petitions: Q4. Do I have to wait until USCIS issues new regulations, guidance or forms to apply for benefits based upon the Supreme Court decision in Windsor? A4. No. You may apply right away for benefits for which you believe you are eligible. Previously Submitted Applications and Petitions: Q5. My Form I-130, or other petition or application, was previously denied solely because of DOMA. What should I do? A5. USCIS will reopen those petitions or applications that were denied solely because of DOMA section 3. If such a case is known to us or brought to our attention, USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130 (such as concurrently filed Forms I-485). USCIS will make a concerted effort to identify denials of I-130 petitions that occurred on the basis of DOMA section 3 after February 23, 2011. USCIS will also make a concerted effort to notify you (the petitioner), at your last known address, of the reopening and request updated information in support of your petition. To alert USCIS of an I-130 petition that you believe falls within this category, USCIS recommends that you send an e-mail from an account that can receive replies to USCIS at USCIS-626@uscis.dhs.gov stating that you have a pending petition. USCIS will reply to that message with follow-up questions as necessary to update your petition for processing. (DHS has sought to keep track of DOMA denials that occurred after the President determined not to defend Section 3 of DOMA on February 23, 2011, although to ensure that DHS is aware of your denial, please feel free to alert USCIS if you believe your application falls within this category.) For denials of I-130 petitions that occurred prior to February 23, 2011, you must notify USCIS by March 31, 2014, in order for USCIS to act on its own to reopen your I-130 petition. Please notify USCIS by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov and noting that you believe that your petition was denied on the basis of DOMA section 3. Once your I-130 petition is reopened, it will be considered anewwithout regard to DOMA section 3based upon the information previously submitted and any new information provided. USCIS will also concurrently reopen associated applications as may be necessary to the extent they also were denied as a result of the denial of the I-130 petition (such as concurrently filed Form I-485 applications). Additionally, if your work authorization was denied or revoked based upon the denial of the Form I485, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary. If a decision cannot be rendered immediately on a reopened adjustment of status application, USCIS will either (1) immediately process any pending or denied application for employment authorization or (2) reopen and approve any previously revoked application for employment authorization. If USCIS has already obtained the applicants biometric information at an Application Support Center (ASC), a new Employment Authorization Document (EAD) will be produced and delivered without any further action by the applicant. In cases where USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment. If another type of petition or application (other than an I-130 petition or associated application) was denied based solely upon DOMA section 3, please notify USCIS by March 31, 2014, by

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?v...

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sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov as directed above. USCIS will promptly consider whether reopening of that petition or application is appropriate under the law and the circumstances presented. No fee will be required to request USCIS to consider reopening your petition or application pursuant to this procedure. In the alternative to this procedure, you may file a new petition or application to the extent provided by law and according to the form instructions including payment of applicable fees as directed. Changes in Eligibility Based on Same-Sex Marriage Q6. What about immigration benefits other than for immediate relatives, family-preference immigrants, and fiancs or fiances? In cases where the immigration laws condition the benefit on the existence of a marriage or on ones status as a spouse, will same-sex marriages qualify as marriages for purposes of these benefits? A6. Yes. Under the U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms marriage or spouse. Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum. In all of these cases, a same-sex marriage will be treated exactly the same as an opposite-sex marriage. Q7. If I am seeking admission under a program that requires me to be a child, a son or daughter, a parent, or a brother or sister of a U.S. citizen or of a lawful permanent resident, could a same-sex marriage affect my eligibility? A7. There are some situations in which either the individuals own marriage, or that of his or her parents, can affect whether the individual will qualify as a child, a son or daughter, a parent, or a brother or sister of a U.S. citizen or of a lawful permanent resident. In these cases, samesex marriages will be treated exactly the same as opposite-sex marriages. Residency Requirements Q8. Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization? A8. Yes. As a general matter, naturalization requires five years of residence in the United States following admission as a lawful permanent resident. But, according to the immigration laws, naturalization is available after a required residence period of three years, if during that three year period you have been living in marital union with a U.S. citizen spouse and your spouse has been a United States citizen. For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages. Inadmissibility Waivers Q9. I know that the immigration laws allow discretionary waivers of certain inadmissibility grounds under certain circumstances. For some of those waivers, the person has to be the spouse or other family member of a U.S. citizen or of a lawful permanent resident. In cases where the required family relationship depends on whether the individual or the individuals parents meet the definition of spouse, will same-sex marriages count for that purpose? A9.Yes. Whenever the immigration laws condition eligibility for a waiver on the existence of a marriage or status as a spouse, same-sex marriages will be treated exactly the same as opposite-sex marriages.

Last updated: 07/26/2013

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