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My country does not recognize same-sex marriages. Will my same-sex partner be considered my spouse for US immigration purposes?

By January 9, 2023Immigration
A same sex marriage

Unfortunately at present, many countries in the world still do not legally recognize same-sex marriages. One source of hope is that under the US immigration laws, if the marriage took place in any other country where same-sex marriage is legal, an applicant’s same-sex spouse will be duly recognized as such for immigration purposes.

In other words, even if same-sex marriage is not legal in someone’s country of citizenship, as long as the couple can travel abroad and get legally married in a different country that recognizes same-sex marriages, the applicant’s same-sex partner can duly receive any applicable immigration benefits as their spouse.

For example, under New York law, it is possible for two foreign nationals to legally get married and register their marriage. This means two foreign nationals, even if they are temporarily in New York in a non-immigrant status, can apply at the New York City Hall to obtain a marriage license and, after 24 hours or more, can perform the marriage ceremony in New York in front of a lawfully authorized officer and required witness(es) and, once completed and duly registered, obtain an official marriage certificate that proves the marriage.

For the purpose of defining legal “spouses” in US immigration law, USCIS uses the “place-of-celebration rule,” which means a marriage is legally valid if it is valid in the jurisdiction in which it is performed.  For example, same-sex marriages are not legally recognized in Russia and a Russian same-sex couple will not be seen as spouses under Russian law. However, if a Russian couple performs and registers their marriage in New York, for example, USCIS will consider this marriage valid and recognize the two Russian individuals as spouses for the purposes of determining US immigration benefits, even if they are not considered married under Russian law.

In sum, same-sex marriages are valid for US immigration purposes if legal in the country where it was held, even if it is not legal in the couple’s country of citizenship.  It is important to note, however, that there must have been a legal marriage somewhere. Common-law relationships, on their own, are not recognized as basis for consideration as “spouses” for the purpose of conferring immigration benefits under US immigration law.

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