DV lottery and same-sex marriage

Q: I was selected for the 2013 diversity visa lottery, but I have not applied for my spouse yet because I’m not sure whether I can bring in my same-sex spouse as a derivative. Can my spouse immigrate to the United States with me under the diversity lottery, even though we got married after I was picked for the lottery?

A: With the recent U.S. Supreme Court decision, U.S. v. Windsor, overturning the harsh provisions of the Defense of Marriage Act (DOMA), a DV lottery winner can obtain a green card for his or her same-sex spouse as a derivative, as long as the marriage took place before completing your immigrant visa or adjustment of status application. Even if you were married after you won the diversity lottery, as long as it is a bona fide marriage, your spouse can immigrate the United States with you as your derivative.

Please note all processing must be completed before the end of the immigration fiscal year (September 30, 2013), so you should make every effort to ensure your case is expeditiously handled.

I would also like to point out a related issue involving the lottery and same-sex marriages. When someone completes the initial lottery application, he/she is required to include the name of his/her spouse. Failure to do so would not only prevent the spouse from immigrating along with the lottery winner but could even result in the winner being disqualified. Since most applicants who were in same-sex marriages knew the federal government’s position that these marriages were “invalid,” they typically responded “no” when asked if they were married.

Unfortunately, the Kentucky Consular Center was not fully complying with the Windsor decision and recent governmental decrees and was advising same-sex marriage derivatives that they were ineligible. Hopefully, this has been remedied, but if you receive such a rejection, it is wrong and you should immediately seek the assistance of an experienced immigration attorney.

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