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BIA Reverses USCIS Denial of I-130 Petition for Same-Sex Couple in Matter of Zeleniak

In its first decision regarding same-sex immigration benefits since the June 26, 2013, Supreme Court decision United States v. Windsor, which held that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional, the Board of Immigration Appeals (“BIA”) has reversed the denial of an I-130 Petition for Alien Relative filed by Serge Polajenko on behalf of his husband, Oleg Zeleniak.  On July 17, 2013, the BIA issued a decision overturning the prior denials (the petition had been denied twice prior to this decision), holding that the Supreme Court decision has removed the impediment to the recognition of lawful same-sex marriages if such marriage are valid under the laws of the State where celebrated.

While it was clear from the Supreme Court decision and from subsequent pronouncements on the subject by officials of the Department of Homeland Security that Windsor paved the way for a variety of immigration benefits for same-sex married couples, Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013) is the first official immigration decision regarding one of these benefits.  Indeed, we expect a significant number of same-sex married couples whose marriages are lawful in the jurisdictions in which they were performed to file marriage-based immigration petitions.  We also expect that couples will seek to re-open prior denials, as in the Zeleniak case.

Importantly, the Supreme Court decision paves the way for a large variety of immigration benefits for foreign nationals who are married or engaged to U.S. citizens.  As we have noted in prior postings, these previously ineligible individuals may now benefit from fiancé petitions, may potentially qualify for waivers of inadmissibility and for cancellation of removal based on their marriages to U.S. citizens, and may qualify to file for adjustment of status (permanent residence) as spouses of a U.S. citizens at the same time that an I-130 is submitted to USCIS.

The reversal of a prior denial of a same-sex married couple’s I-130 immigrant visa petition, while not unexpected in the wake of Windsor, is certainly a most welcome development in the evolution of U.S. immigration law.  And undoubtedly, it is the first of many such reversals to come.


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