DOMA and Immigration Benefits08 Jul 2013
The U.S. Supreme Court struck down a key section of the Defense of Marriage Act (DOMA) on June 26, 2013. DOMA, which prohibited the federal government from recognizing same-sex marriages, stood in the way of providing marriage-based immigration benefits to legally-married gay and lesbian couples. Although a number of questions still remain, it is clear that this historic development will have far reaching implications in immigration law.
Background: Marriage Definition Broadened
The U.S. Supreme Court case, U.S. v. Windsor, addressed the constitutionality of Section 3 of DOMA. Section 3 established a limitation on the definition of the terms marriage and spouse for purposes of U.S. federal law, to only recognize marriages between one man and one woman. While same-sex marriage is legal in certain foreign countries, as well as a growing list of states within the United States, DOMA prohibited the recognition of these marriages under federal law, thus also cutting off the issuance of any marriage-based federal benefits, including immigration benefits, to gay and lesbian couples. The Supreme Court struck down Section 3 of DOMA, finding it to be an unconstitutional violation of “basic due process and equal protection principles… .”
DOMA Ruling has Immediate Impact
Just minutes after the issuance of the Supreme Court’s decision, the first reported instance of a foreign national receiving a benefit based on a same-sex marriage occurred in immigration court in New York. This was followed a few days later by the first grant of permanent resident (green card) status based on a same-sex marriage to a man residing in Florida.
DHS Secretary Issues Statement to the USCIS
The Secretary of the Department of Homeland Security (DHS) issued a statement shortly after the DOMA decision, confirming that she had directed the U.S. Citizenship and Immigration Services (USCIS) to review immigrant visa petitions filed by same-sex spouses in the same manner as those filed by opposite sex couples.
The USCIS and DOS Working to Help Same-Sex Couples
The issuance of the DOMA decision coincided with the 2013 national American Immigration Lawyers Association conference. At that conference, USCIS Director Alejandro Mayorkas, as well as other USCIS officials, reflected a positive attitude toward this change, and revealed that, since 2011, the USCIS has kept track of all I-130 family petitions denied based upon same-sex marriages. The USCIS indicated that officials are working on guidance for addressing issues and details as quickly as possible. Representatives from the U.S. Department of State (DOS), which is responsible for visa issuance at the U.S. consulates abroad, shared similar sentiments.
Spousal Relationship Useful for Some Immigration Benefits
Many immigration benefits are available based on a spousal relationship. In addition to marriage-based permanent resident status, there are dependent nonimmigrant benefits, such as H-4 and L-2 status, which are available to spouses. Certain waivers and avenues for relief in removal proceedings depend upon a demonstration of hardship to certain qualifying relatives, including spouses. And there are benefits for qualified stepchildren, who can apply for immigration benefits in the same fashion as biological children, subject to certain restrictions.
Clarification Still Needed in DOMA-Ruling Implementation
One significant open question regarding the DOMA ruling is whether the USCIS and DOS will grant immigration benefits to gay and lesbian couples who became legally married in the United States (or abroad), but who reside or intend to reside in a state that does not recognize same-sex marriage. In an attempt to answer to this question, the DHS released a relatively cryptic statement explaining that:
… as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.
The “limited exceptions” mentioned in this statement by the DHS may be referencing situations in which opposite-sex, married couples are generally denied certain immigration benefits by the USCIS and DOS because they reside in a state that does not recognize their marriage. For instance, some states, such as Alaska, permit marriages between first cousins, while other states, such as Iowa, do not recognize such marriages. Therefore, the spouse of an H1B worker stationed in Alaska generally would be able to obtain an H-4 visa, while the spouse of an H1B worker in Iowa would potentially face a denial of this immigration benefit.
Still, there is reason to believe that state marriage laws will not necessarily be the deciding factor in determining whether or not to grant immigration benefits to a same-sex couple. As mentioned above, the partner of a Florida man was issued his green card shortly after the DOMA ruling. However, the couple was actually married in New York, because gay marriage is not recognized in Florida. By approving the man’s marriage-based petition, it appears the USCIS determined that the marriage was entered into legally, and therefore the individual was entitled to federal immigration benefits, regardless of how Florida treats such marriages.
The U.S. Supreme Court’s decision has undoubtedly come as welcome news to the scores of same-sex couples hoping to reside together in the United States. The Murthy Law Firm would be honored to work with families that wish to request newly-available immigration benefits, based on this monumental shift in the law.
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