Form I-130 Denied Because Of DOMA:

Introduction

Following the landmark U.S. Supreme Court ruling that the federal government must recognize same-sex marriages that are conducted in places where it is legal, USCIS has announced that it has begun accepting and reviewing immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. Accordingly, a U.S. Citizen or a lawful permanent resident (LPR), who is married to or engaged to be married to a foreign national of the same sex, may apply right away for immigration benefits for which they believe they are eligible.

Previous Form I-130 Denial

In cases where the Form I-130, or other petition or application, was previously denied solely because of DOMA, USCIS will reopen those petitions or applications. USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130, such as concurrently filed Forms I-485. In cases where work authorization was denied or revoked based upon the denial of the Form I-485, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document (EAD) issued, to the extent necessary.

USCIS has announced that it will make a concerted effort to identify I-130 denials that occurred on the basis of DOMA after February 23, 2011. USCIS will also make a concerted effort to notify the petitioner at his or her last known address, of the reopening and request updated information in support of the petition.

USCIS has further announced that if a decision cannot be rendered immediately on a reopened adjustment of status application, it will either

1. immediately process any pending or denied application for employment authorization or
2. reopen and approve any previously revoked application for employment authorization.

Where the applicant has already submitted his or her biometric information at an Application Support Center (ASC), an EAD will be produced and delivered without any further action by the applicant. In cases where USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment.

I-130 Denials Occurred Prior To February 23, 2011

For I-130 denials that occurred prior to February 23, 2011, applicants must notify USCIS by March 31, 2014 for it to act on its own to reopen the I-130 petition.  The applicant may notify USCIS by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov noting that he or she believes that the petition was denied on the basis of DOMA section 3.

Once the I-130 petition is reopened, it will be considered anew—without regard to DOMA section 3—based upon the information previously submitted and any new information provided.

If any other petition or application, other than an I-130 petition or associated application, was denied based solely upon DOMA section 3, the petitioner or applicant may notify USCIS by March 31, 2014, by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov. In such cases, USCIS will consider whether reopening of that petition or application is appropriate under the law and the circumstances presented.  No fee will be required to request USCIS to consider reopening a petition or application pursuant to this procedure.

Furthermore, for I-130 petitions filed prior to February 23, 2011 or other types of petitions, the applicant has the option of re-filing the petition.

DID YOU KNOW?
Applicants may also use the same email address to contact USCIS about petitions denied after February 23, 2011 if information like address has changed.

Conclusion

USCIS has announced that it will continue to update information regarding same-sex marriage and immigration benefits. We at VisaPro continue to monitor the developments in this regard and will keep our readers updated. If you are in a same-sex marriage and wish to sponsor your foreign national spouse for any immigration benefit or if want to learn more about the immigration options that are now available to same-sex couples and their family, Contact VisaPro immediately. We will be happy to talk to you.