On June 26, 2013, the U.S. Supreme Court struck down the Defense of Marriage Act (“DOMA”). In a 5-4 decision, the Supreme Court held that DOMA is unconstitutional because the word “marriage” in any federal law meant only a union of a man and a woman. Until yesterday, DOMA denied a number of federal benefits, including immigration, to legally married same-sex couples. As a result of the decision, the U.S. Citizenship and Immigration Service (“USCIS”) is expected to immediately recognize, for federal immigration purposes, same-sex marriages that were valid in the jurisdictions where they were performed.
Department of Homeland Secretary Napolitano, in a statement issued after the decision, suggested that she would work with other federal agencies towards “implement [the Court's] decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”
Immigration Benefits Available to Same-Sex Married Couples
Now that DOMA has been struck down and subject to immediate implementation by USCIS, same-sex individuals legally married in any jurisdictions recognizing same-sex marriage should be eligible to apply and obtain a number of immigration benefits. Among such benefits are the right to be petitioned for by a same-sex U.S. citizen spouse; the right to be granted derivative status as the spouse of a non-immigrant visa holder, or to be included in a same-sex spouse’s green card application; to obtain derivative asylee or refugee status; and the right to be considered as a qualifying relative for purposes of cancellation of removal.
For example, same-sex spouses should now be eligible for H-4, L-2 or TD dependent visas, in addition to being eligible for derivative spouses’ green cards. Obviously, same-sex spouses would also be eligible to be sponsored on the basis of family immigration by a US citizen spouse.
We would like to point out that while DOMA was struck down effective yesterday, we do not know yet whether USCIS will need to revise some of its policies, including officer training, in order to comply with the court’s decision and to afford immigration benefits to those same-sex spouses who are eligible. We expect that there would be at least some period in which federal agencies, including USCIS, would take to review and adjust its policies, guidelines and personnel training. We hope that such period is as short as possible, but we are prepared to assert these newly-created rights and benefits on behalf of applicants and our clients.
We applaud the Supreme Court’s decision and we invite readers who may benefit from the newly-enabled federal benefits to contact us if we can be of any assistance. While the initial weeks or months following the decision may be surrounded by some uncertainty, we hope that USCIS would be able to update its guidelines and allow for true equal treatment to same-sex married applicants. Also, we will continue monitoring this topic and provide any updates. Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.