In May 2008, California Supreme Court overturned the gay marriage ban. After this turning point, our firm has received several inquiries about the immigration benefits of same-sex marriage.

Mimi came to the US for her graduate study, and now she is a Ph. D student of biology in a university of CA.  When she stays in the U.S, Mimi fell in love with Monica, a female post-doctor researcher who is an American citizen. They have lived together for two years. In June 2008, Mimi and Monica held their wedding ceremony and became a legal couple in California. Mimi came to our office with the question that after she and Monica married legally in CA, could Monica, her “wife”, apply family-based immigration for her. In other words, can this same-sex marriage bring immigration benefits for Mimi?

Generally speaking, marriage is regulated by the state laws, but the immigration is regulated by the federal law. Federal laws usually recognize the validity of a marriage if the marriage was valid in a state or another country where the marriage was entered into. There is no exact definition of marriage in the immigration laws.

Same-sex marriage also referred to as gay marriage, is a marriage between two persons of the same sex. Over decades, supporters of same-sex marriage have advocated and fought for the validity of same-sex marriage. However, in 1996, the House of the representatives and the Senate passed the Defense of Marriage bill, which was then signed by President Bill Clinton on September 21, 1996. According to The Defense of Marriage Act, U.S. Congress clarifies that the word "marriage" means only a legal union between one man and one woman as husband and wife and the word "spouse" refers only to a person of the opposite sex who is a husband or wife. Apparently, the U.S. Congress interprets that marriage exists only between male and female. Thus like the words of Chris Rhatigan, the  spokeswoman of USCIS ever said to, immigration laws do not accept gay or lesbian marriages, although same-sex marriage is currently recognized on the state level by two states, California and Massachusetts, and Vermont recognizes civil unions, but not marriage, of same-sex couples.
 
So we can see that in Mimi’s case, although she and Monica married legally in CA, this same-sex marriage cannot bring her any immigration benefits so far. If Mimi wants to immigrant to the U.S and live together with her “wife” Monica, she may have to file an employment based immigration petition.