Janet Napolitano, Secretary of Homeland Security, released an official statement indicating that a petition based on a same-sex marriage will be entitled to the same immigration benefits as an opposite marriage. Her exact words were:
“Effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review 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.”
USCIS will determine if a marriage is lawful based on whether it was legal in the jurisdiction where the marriage occurred, and not where the couple currently resides. Therefore, a same-sex couple that wed in a state or country that allows same-sex marriages can still petition for immigration benefits for a foreign national spouse even if the couple currently lives in a state that does not recognize same-sex marriage.