The recent decision by the U.S. Supreme Court to strike down the Defense of Marriage Act and allow same sex couples the same federal benefits as those in intersex marriages was viewed as a major victory for the lesbian, gay, bisexual, and transgender community. Unfortunately, not long after the Supreme Court’s decision, individuals in same sex marriages who had won the green card lottery were told by members of the State Department that their same sex spouses could not accompany them to the United States, even though individuals in intersex marriages who win the green card lottery are allowed to have their spouses accompany them to the United States under what is known as a derivative visa.
The Green Card Lottery
The green card lottery, which is officially known as the Diversity Visa program, awards visas through a lottery system to individuals from nations which are underrepresented by immigrants in the United States. This means that only individuals from certain nations can qualify to play the green card lottery, but, if won, the person is granted a green card / lawful permanent residency and all benefits which go along with it.
The State Department was Wrong
Shortly after the Supreme Court decision that overturned the Defense of Marriage Act, green card lottery winners in same sex marriages were still being told that their marriages did not qualify for the benefit of bringing a spouse to the United States under a derivative visa. Essentially, the U.S. State Department was enforcing the old rules after the new rules should have taken effect. Anyone at the U.S. Department of State who denied derivative visas to green card lottery winners in same sex marriages was wrong.
After the decision by the Supreme Court to reverse the Defense of Marriage Act, individuals in same sex marriages are allowed to receive the same immigration benefits as individuals in intersex marriages. This includes the benefit of green card lottery winners to have their spouses accompany them to the United States under a derivative visa. In order to receive the same sex benefit of bringing a spouse to the United States, the lottery winner’s marriage must be legally recognized in a nation that recognizes same sex marriages, or recognized in a U.S. state which recognizes same sex marriages.
Partner with an Attorney for the Benefits you Deserve
The new system in place removes many barriers to government benefits for those in same sex marriages, including benefits under the immigration system, but that does not mean that going through the immigration process is any easier – it is still a meticulous and confusing process that should not be faced without the help of an experienced immigration attorney.
Even if they have already been denied a derivative visa for a same sex spouse, individuals should still speak with an attorney. In most cases, if the reason for the denial was because of the same sex aspect of the marriage alone, an attorney may be able to help the spouse receive a derivative visa by appealing the original decision. Like the initial immigration process, the appeal process can be just as confusing and frustrating, which is why an attorney should be partnered with from the beginning. With an attorney by their sides, anyone filing for any sort of visa or appeal can be sure that their paperwork will be filled out properly and that their applications have the highest chance of being approved as possible.