Visa Lawyer Blog
This is a very important update from AILA. The deadline for submitting an
Application to Register Permanent Residence or Adjust Status (I- 485) for winners of the 2013 Diversity Visa (DV) lottery is fast approaching; an adjustment of status application must be approved or immigrant vis a issued by September 30, 2013.
With the decision of the U.S. Supreme Court in U.S. v. Windsor,570 U.S. 3196928 (2013), married same – sex couples are no longer barred from receiving federal
benefits, including immigration benefits.
If you are a lesbian or gay DV winner and married to a foreign national, the DV winner can now apply for his or her same – sex spouse as a derivative. Moreover, if you are lesbian or gay and in long – term relationships, but who have not married, if you marry before submitting the immigrant visa application, the DV applicants can include the spouse and step – children.
According to State Department ( DOS ) guidance from 1998, “spouses and/or children acquired subsequent to the DV entry submission remain eligible for derivative diversity visas provided that all concerns of fraud and of marriage for immigration purposes have been sufficiently addressed. ”
So, even if the marriage took place after the applicant won the lottery, the lottery winner can still include his or her spouse or step -child on the application for the immigrant visa.
That same DOS gu idance states that “failure to include the required biographic details of a spouse and children in a DV entry is cause for the entry’s disqualification.
Applicants who later claim at the DV visa interview that they failed to accurately represent their family’s biographic details should be informed that such an omission mandates automatic disqualification of their entry.
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Since prior to June 26, 2013, the date of the Windsordecision, a same-sex married couple was not recognized under U.S. immigration law, it seems clear that DOS could not penalize the couple for not listing a spouse on the lottery entry. Indeed, the DOS 2013 instructions clearly state
: “11. CAN MY SAME -SEX SPOUSES BE INCLUDED IN A DV ENTRY? No,
same-sex marriages are not recognized by immigration law for the purpose of immigrating to the United States.
Thus, whether or not the DV lottery winner was validly married at the time of submitting the lottery entry electronically, he or she should be able to include a same-sex spouse and his or her children as derivatives. We will keep you posted with new information.
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