On marriage to same sex non-citizen, can we marry now and apply for permanent visa at a later time?

Under US federal law, same sex marriage is not recognized and since US immigration law is federal, there is no way currently to obtain immigration benefits for a same sex spouse.

Whether you can marry now depends on the state wherein you live. The right to marry and other family law issues are matters delegated to the states. Therefore whether you can legally marry some one of the same sex depends on the state where the marriage takes place. As of now, not all states recognize same sex marriages. With regards to your interest in filing for green card with CIS for your same sex spouse, note that at the federal level, the Obama administration ionly just started to review the regulations with respect to granting same rights and privileges to same sex partners as the government has done for heterosexual couples. Until the government announces how it intends to apply the Supreme court ruling on same sex marriages in the immigration context, you may want to adopt a wait and see attitude. Here is why. Since he is already in the US now, you can go ahead and get married, the issue is it is unlikely the government will announce its promulgation of how it intends to adjudicate your petition. And without a clear understanding of how it will adjudicate your petition, you do not know what the rules are. It is also unlikely that such rules will be promulgated any time soon. If you marry and it turns out you cannot file the petition just yet, your partner may have to return to his country rather than risk falling out of status. The next time he appears with a B-2 tourist visa at a US port of entry he will have to prove he does not have an immigrant intent despite the fact that the record will show that he has a US citizen spouse. Unless he can prove that he is truly a tourist, he may be denied admission and summarily removed exactly the same problem that has traditionally been faced by aliens with spouses in the US who show up at a port entry as just visitors.

I am assuming you intend to marry in the US and in your state same sex marriages are legal. If so, you can go ahead and marry now. As far as obtaining permanent residence, presently the US immigration laws do not provide any means for same sex spouses to confer any benefits to their foreign born spouses, although in light of the recent Supreme Court rulings and the ongoing Congressional immigration battle things may change in the future. For now, your spouse would have to obtain his residency through other means such as employment, other family relations, or asylum.

As you understand, the ramifications of the U.S. Supreme Court's decision in * U.S. v. Windsor* for immigration law practice are not clear yet: they have not been tested even administratively, in USCIS adjudications. It will take hundreds of cases litigated in the courts before the law could be considered settled. The opposition to the decision is tremendous, and will likely prompt the Congress to pass a law that would curb application of the *Windsor*decision; particularly, it is more likely than not that whatever immigration law reform eventually gets passed will contain provisions excluding same-sex couples from its beneficiaries. So don't think that the fight is over. On the more immediate level, if you get married, your spouse is likely to have trouble coming back to the U.S. on a non-immigrant visa. By law, a non-immigrant visa applicant must prove, to satisfaction of a U.S. consular officer, that the applicant has no intention to stay in the U.S.; a non-immigrant visa holder can be required to prove the same to satisfaction of immigration inspector at the port of entry. If your spouse indicates (as he will have to do) that he is married to a U.S. citizen, it will create a presumption that he intends to stay in the U.S. Considering USCIS position that same-sex marriage does not entitle an alien to stay in the U.S., it is diabolically perverse to deny a non-immigrant entry to such person - but the same can be said about many aspects of immigration law and practice. So, if you marry, and your spouse leaves the U.S. even for a day, he will run a substantial risk of being denied entry back into the U.S.

Based on the law today, you can marry your boyfriend in a state where same sex marriage is recognized like California. Unless the law changes in the future, you should be able to file for immigration benefits later.

The only issue I could see with marrying now and applying later would be that he could have a problem any time he attempts to enter the US as a visitor to visit you, because he is coming over to the US to visit his spouse and they may think there is a preconceived intent to remain in the US to adjust status versus doing it through the consulate, which takes longer. Other than that, there is no problem. If you are a citizen, the process for you to petition him should be quick. Quicker if it is done in the US.