You need to be married first.
J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.
All Article 3 of DOMA did was to mandate a certain definition of marriage for federal interpretation. The fact that the definition in question was struck down by SC, does not mean that the immigraiton law will now automatically include same sex marriage. They need to change title 8 regulations for that. DHS Secretary promised to do it quick. So far, it has not been done. Talk to an immigraiton attorney locally. DIfferent jurisdictions may mandate different approach. Not all states recognize marriage in its expended definition.
NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: firstname.lastname@example.org; Phone: (866) 456-8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.
If you plan to marry in a jurisdiction that acknowledges same-sex marriages, then you should be able to pursue immigration benefits based upon such union. I would highly recommend that you and your partner consult with a US Immigration & Nationality Law Specialist as soon as you determine to move forward with your plans.
There are no regulation yet, but according to the USCIS leadership (they talked at the AILA conference in San Francisco) one (the US partner) may file the I-130 Petition right away. However, are you married? If not then go to the third country (Europe) and get your formal marriage.
Congratulations on your upcoming marriage and finally being able to have your dream within reach! The decision in Windsor was one of the most significant civil rights decisions in 50 years, and yes, the decision does mean your fiancé can sponsor you for immigration benefits.
The decision struck down the portion of DOMA barring the Federal Government from recognizing same-sex marriages (Section 3). As a result, this means you and your partner will be recognized as married under Federal law and some states' laws, but not all, and DHS confirmed yesterday that applications may be filed IMMEDIATELY.
Lawyers following these development anticipate that the differing and inevitably discriminatory treatment between states will likely be the next round of litigation, not to mention other important related civil rights issues, such as employment discrimination on the basis of sexual orientation. Regardless, this unfinished business should not impact your immigration process.
As a general rule, so long as you are coming as a fiancé to marry in a marriage equality state, or married in a state or country where same sex marriages are recognized, that union can form the basis for you to be sponsored.
Also, as a Colorado attorney, I'm sorry to inform you that, although we now recognize civil unions, it's unclear whether those will count for purposes of immigration law. You'd want to explore marrying in another state, which is how we have advised our clients to proceed--no need to fight that battle when there is a clear alternative.
You will still want to have a consultation with an immigration lawyer well-versed in family-based immigration and LBGT issues in specific. Good luck, and have fun planning the wedding.
This answer provides only general information and may not be relied on as legal advice. For more information about immigration law and policy, please visit www.lichterimmigration.com or follow us on twitter (@lauralichter) or facebook, www.facebook/lichterimmigration. To find an immigration lawyer in your area, log on to www.ailalawyer.com. Listed attorneys have been members of the American Immigration Lawyers Association, the nation's premier bar association for immigration lawyers, for at least two years, comply with annual continuing legal education (CLE) requirements and carry malpractice insurance.