07 May How do Same Sex Couples Qualify in an EB-5 Setting?

In June of 2013, the U.S. Supreme Court in U.S. v. Windsor [i] found that Section 3 of the Defense of Marriage Act (DOMA)[ii] was unconstitutional. This section of DOMA defined a legal marriage as between a man and a woman which in turn precluded the federal government from recognizing any same-sex marriages for benefits of federal laws or programs, including but not limited to immigration-related benefits.

Subsequent to the Court’s decision, President Obama requested that all federal departments take the necessary steps to ensure that same-sex legally married couples receive federal benefits that are consistent with the result of this landmark decision. Thereafter, then Secretary of Homeland Security, Janet Napolitan, informed USCIS that they were obligated to review visa applications filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. This U.S. Supreme Court case could thus effectively have a substantial impact on the granting of EB-5 visas to same-sex couples in the U.S., but at this time there is no significant data available to determine how much of an impact this case has had.

There are many countries that have legalized same-sex marriages. These countries include the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, France, Brazil, Uruguay, New Zealand, and Britain.[iii] Even if a couple does not reside in a country that permits same-sex marriages, there is still a chance to apply for an EB-5 visa in the U.S. If the couple gets married in a state or country that does recognize same-sex marriages as long as they permit non-residents to legally marry in the country, then this will also qualify as a lawful marriage. Additionally, stepchildren of same-sex marriages can qualify as beneficiaries or for derivative status.[iv]

Unfortunately, civil unions and other domestic partnerships, although recognized in some countries, are not recognized as legal marriages for purposes of EB-5 visa qualification. However, an unmarried same-sex partner could apply for a B-2 visa, which is appropriate when traveling to the U.S. for tourism, amusement, visits with friends or family, rest, or medical treatment. [v]

In conclusion, with the fall of DOMA, U.S. embassies and consulates are now adjudicating visa applications based on same-sex marriage the same way that applications for opposite gender spouses have been processed. Although specific data has yet to be published, it is certain that such a landmark decision in U.S. v. Windsor will have an impact.

[i] http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

[ii] http://www.gpo.gov/fdsys/pkg/BILLS-104hr3396enr/pdf/BILLS-104hr3396enr.pdf

[iii] http://www.freedomtomarry.org/landscape/entry/c/international

[iv] http://travel.state.gov/content/dam/visas/DOMA/DOMA%20FAQs.pdf

[v] http://canberra.usembassy.gov/business-tourist/b1—b2-visa-info.html