Roll Call features Loren Locke discussing the State Department's policy changes for same-sex couples' visa applications.
From the Article
"A pretty exciting development, and an overdue one."
"It really blows it open. There will be a lot more families."
Locke Immigration Law's Take
The May 2021 State Department interpretive change Loren flagged in this Roll Call piece eliminated a discriminatory genetic requirement that had produced bizarre outcomes for same-sex couples whose children were born abroad — most visibly the Dvash-Banks case, where twin boys born simultaneously to the same surrogate received different US citizenship designations because the conception involved each father's sperm individually. Under the new interpretation, a child born abroad to married parents qualifies for citizenship if the child is "related either genetically, or gestationally, to one parent" who is a US citizen. As Loren put it, "it really blows it open. There will be a lot more families."
The change was overdue and substantively correct, but it also illustrates a quieter dynamic in immigration practice: most of the law's most consequential changes happen at the level of agency interpretation, not statute. The same statutory framework that produced the Dvash-Banks outcome was applied differently after the 2021 reinterpretation, without legislative action. That makes interpretive shifts both faster (a single agency notice can change the outcome) and more reversible (a future agency can re-interpret) than statutory change. For families relying on the post-2021 interpretation in 2026 and beyond, that reversibility is worth knowing.
For clients with similar family structures — same-sex married couples with children born abroad via surrogacy or assisted reproduction — the practical guidance hasn't changed since 2021: document parentage rigorously (marriage records, intended-parent documentation, gestational evidence), file consular reports of birth abroad on the timeline the framework supports, and don't rely on informal practice at any single consulate. The interpretive framework is settled in current State Department guidance; the documentation discipline is what makes a particular case go cleanly.
Key Takeaways
- The May 2021 State Department reinterpretation eliminated the requirement that a child born abroad must be biologically related to the US-citizen parent specifically — gestational or genetic relationship to either married parent now qualifies.
- The Dvash-Banks twins case demonstrated the absurdity of the prior rule: simultaneous twins to the same surrogate received different citizenship designations.
- Most consequential immigration changes happen via agency interpretation, not statute — faster but more reversible than legislative change.
- Practical guidance for same-sex couples with children born abroad: rigorous parentage documentation, timely consular report of birth abroad, don't rely on informal practice at any single consulate.