Visas Available for Same-Sex Spouses of Diversity Visa Winners

The American Immigration Lawyers Association (AILA), of which I am a member, recently issued a practice alert that reminds attorneys of the importance of educating their clients about changes in the diversity visa lottery registration process brought about by the United States Supreme Court's recent ruling in U.S. v. Windsor, 570 U.S. ---, --- S. Ct. ---, 2013 WL 3196928. This practice advisory affects winners of the 2013 Diversity Visa (DV) Lottery and their same-sex spouses and children of the marriage.

The Diversity Visa Lottery, also known as diversity of admissions by country of origin, favors awarding visas to nationals of countries with historically low levels of migration to the United States, who possess either a high school diploma or its equivalent or at least two years of work experience within five years of applying.

On June 26, 2013, the United States Supreme Court issued its ruling in Windsor which invalidated Section 3 of the Defense of Marriage Act (DOMA) as violative of the constitutional guarantees of equal protection and due process. The import of the Windsor ruling is that the federal definition of marriage cannot exclude individuals whose marriage is valid in the state where it was entered into. Federal benefits, including immigration benefits, which depend upon the existence of a valid marital relationship cannot be denied to individuals on account of their sexual orientation.

Winners of the 2013 Diversity Visa Lottery have until September 30, 2013 for their Form I-485, Application to Register Permanent Residence or Adjust Status, to be approved or for an immigrant visa to be issued.

In submitting their immigrant visa applications, DV lottery winners can now include their same-sex spouse and children as derivatives on the application. As long as the application is not fraudulent and the marriage was not entered into for the purpose of obtaining an immigration benefit, Department of State should issue derivative visas to the applicant's same-sex spouse and children even if the qualifying marriage took place after the applicant won the lottery.

The end of DOMA should come as a relief to individuals in long-term relationships who can now marry knowing that they and their children should be able to obtain visas allowing them to immigrate together to the United States.

Timothy D. Widman is a San Jose Immigration Attorney and the owner of the Law Office of Timothy D. Widman.

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