Since the U.S. Supreme Court case of United States v. Windsor (2013), the USCIS treats any immigration application, including the applications of green card lottery winners and their husbands, wives, children, or unmarried sons or daughters less than age 21, exactly the same as immigration applications by individuals married to someone of the opposite sex. Even though same-sex couples can participate in the green card lottery, they must meet the same conditions that apply to opposite-sex couples. The condition that is likely most challenging for same-sex couples is that they must be “spouses,” legally married in a place that allows same-sex marriages.
The U.S. established the Diversity Immigrant Visa Lottery program in 1990 to entice immigrants from places other than the most common home countries of U.S. immigrants. Through a lottery, the program awards up to 55,000 green cards annually.
In Windsor, the U.S. Supreme Court found unconstitutional Section 3 of The Defense of Marriage Act (DOMA). Through DOMA, the U.S. denied some federal benefits, including immigration benefits, to same-sex husbands and wives and their children. The Windsor Court held that blanket denial of same-sex couples’ benefits violates equal protection of the laws. The fundamental right to equal protection of the laws is expressly recognized in at least two sections of the U.S. Constitution’s Bill of Rights. The U.S. government cannot apply laws unequally without a legitimate government interest, and the Windsor court held there is no legitimate government interest in making a married couples’ sexual orientation the basis for denying rights.
For any couple to participate in the green card lottery, either the husband or wife must be a native of a country from which the U.S. has admitted less than 50,000 immigrants during the past five years. Also, the husband, wife and children must have been listed on the initial green card lottery application. Most importantly for same-sex couples, they must, like same-sex couples, be husbands or wives whose marriage is documented by a marriage certificate. The following is a list, from FreedomtoMarry.org, of countries that allow same-sex marriage to date:
| Argentina | Belgium | Brazil | Canada |
| Denmark | England | France | Iceland |
| Luxembourg | Mexico (some states) | New Zealand | Norway |
| Portugal | Scotland | Spain | South Africa |
| Sweden | The Netherlands | The United States (some states) | Uruguay |
| Wales |
Presently, about half of all green card lottery winners hail from African countries. Africans won 47,879 green cards in 2009. The second largest group of winners in 2009 was from Asian countries, and the third largest group was from Europe. Since most green card lottery winners are presently from Africa and Asia and the countries on these continents don’t allow same-sex marriage, the majority of lottery applicants who are in same-sex couples would have to receive their marriage certificate elswhere before they would be eligible to immigrate together through the green card lottery, which allows both same and opposite-sex couples to participate with proof of a marriage certificate.
It’s important for all green card lottery applicants to remember that listing all family members on your application is required. Listing all members doesn’t mean they will have to actually apply for a visa or travel to the U.S. But if you don’t list a family member on your green card lottery entry and you later list them on your visa application, you’ll be disqualified from the lottery and none of you will be eligible for a visa. It’s also worth noting that winning the lottery does not alone guarantee the ability to immigrate to the U.S. Like all immigration applicants, green card lottery winners must apply for a visa and pass visa interviews. And like all visa holders, you must pass security checks at your point of entry.