As announced in an article by Julia Preston in the June 30 New York Times, U.S. Citizenship and Immigration Services (USCIS) has already begun approving marriage-based green cards for legally married same-sex couples. (We should expect an announcement from the Guinness Book of World Records next, because I think this is the fastest that this gigantoid bureaucracy has moved on anything, ever. The couple was surprised. Their lawyer was surprised.)
The important thing to realize about this action, however, is that the couple’s application was filed previous to the Supreme Court decision overturning core portions of the federal Defense of Marriage Act, or DOMA (which had created the bar to same-sex-marriage-based green cards in the first place). Apparently a number of same-sex couples anticipated DOMA’s eventual demise, no doubt based on the Obama Administration’s 2011 declaration that DOMA was unconstitutional and shouldn’t be enforced, and they submitted visa petition or green card applications in advance of any certainty that they would be approved. (Just one of those individual acts of courage that adds up to a movement . . . .) The couple in the article submitted a green card application last February.
What this recent USCIS action doesn’t mean is that the agency is prepared for new applications right this minute, or will act this quickly on them. The normal turnaround for an I-130 (the visa petition that the U.S. citizen or permanent resident would file if the immigrant is either overseas or is in the U.S. but ineligible to use the “adjustment of status” procedure, most likely because of an illegal entry), is about six months. (You can view USCIS’s not entirely reliable time estimates on its Case Status page.)
The normal turnaround time when the immigrant is already in the U.S. AND is eligible to use the U.S.-based adjustment of status procedure, in which case the U.S. citizen spouse can file an I-130 visa petition together with the rest of the green card packet, depends on backups at their local USCIS District Office. This process usually also takes several months before the couple is called in for the personal interview at which the green card should be approved.
Add to all this the fact that USCIS hasn’t issued any guidelines about how it will consider same-sex marriage cases and, if you’re in a same-sex binational married couple, you’ve got good reasons to hold off and consult a lawyer before actually submitting anything. At least a few days. We need to make sure no unhappy surprises turn up in the guidelines USCIS issues.
There’s reason to hope that the guidelines will be fairly straightforward, however. USCIS has promised to issue them promptly, and Janet Napolitano stated today that, “. . . 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.”
No matter what, now is a good time to start figuring out what you’ll need for the green card application and to get the various forms and documents ready. You’ll find information on marriage-based visas and green cards here on Nolo’s website.