BIA rules same-sex marriage green card application is approvable | Missouri & Illinois Immigration Attorney Jim Hacking

In Matter of Zeleniak, The Board of Immigration Appeals (BIA) recently held that in accordance with the U.S. Supreme Court’s decision in U.S. v. Windsor, the Defense of Marriage Act (DOMA) no longer stands in the way of the recognition of lawful same-sex marriages and recognition of spouses under the Immigration and Nationality Act (INA) if the marriage is valid under the laws of the state where it was celebrated.

Why the petitioner was denied

Oleg B. Zeleniak is the U.S. citizen petitioner who filed an I-130 petition, for Alien Relative, on behalf of the beneficiary, Serge V. Poplajenko as his male spouse in March of 2010. At the time, U.S. Citizenship and Immigration Services’ National Benefits Center Director denied the petition. The petitioner appealed the denial to the Board. In April 2012, the Board decided to remand the record to the Director with instructions to answer two questions: (1) is the petitioner’s marriage valid under Vermont law and (2) does the marriage qualify under the Immigration and Nationality Act absent the DOMA requirement. The Director determined that the marriage was indeed valid under Vermont law but did not consider whether the beneficiary would be a spouse under the INA absent of the DOMA requirements. The Director once again denied the visa to the petitioner. The petitioner once again appealed to the Board.

DOMA removes previous impediment

The Board sustained the petitioner’s appeal and again remanded the record to the Director for further consideration. It was explained “an alien spouse of a U.S. citizen may acquire lawful permanent resident status in the U.S.” Furthermore, in order to determine whether or not their marriage is valid for immigration purposes, the U.S. citizen petition must establish that a legally valid marriage exists and the beneficiary qualifies as a spouse under the INA, which includes “the requirement that the marriage must be bona fide.”  The Board additionally said the Windsor decision removed DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage was valid under the laws of the state where it was celebrated. This can apply to fiancé and fiancée visas, immigrant visa petitions, refugee and asylee derivative status and removability and waivers of removability. The appeal is sustained by the Board and the Director is to further consider the visa petition in accordance with the new DOMA decision.

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