Immigration Law Office

August 29, 2013


By: Ellie Mosko

On June 26, 2013, the Supreme Court of the United States found Section 3 of the Defense of Marriage Act (“DOMA”), which defined the word “marriage” as the union between one man and one woman for purposes of any federal ruling, regulation or interpretation, to be unconstitutional, U.S. v. Windsor, No. 12-307, 570 U.S. __, 2013 WL 3196928 (June 26, 2013).  This monumental decision impacted many areas of law including immigration. 

Under current immigration law, a marriage is one in which it is a lawful and valid in the place where the marriage occurred as long as it is not contrary to public policy.  In the past, same sex marriages that occurred in jurisdictions where they were legal were not recognized for immigration purposes because of Section 3 of DOMA.  Thus, a same sex spouse from another country could not seek a benefit from being married to a U.S. Citizen or Lawful Permanent Resident, whereas an opposite sex spouse could.  Now, with the death of DOMA, same sex married couples should be treated the same as other married couples for better and for worse when it comes to immigration laws and interpretations.  

Some examples of how DOMA’s defeat may be recognized in immigration cases may include (but may not be limited to): 

  • Spousal Petitions:  Under immigration law U.S. Citizen and Lawful Permanent Resident spouses may petition for their foreign spouse to bring them to the United States and create a path towards Permanent Residency and Citizenship. 

  • Fiancé/Fiancée Visas:  U.S. Citizens can petition for fiancés/fiancées abroad to come to the United States to get married.  This option will now be available for same sex couples.  It is encouraged that in applying for a fiancé/fiancée visa, the petitioner indicate where s/he is planning on getting married and that it is a jurisdiction where same sex marriage is legally recognized.
  • Derivative Status for different types of visas including employment based visas and student visas.  Certain visas allow for a spouse and children to obtain visas to join the primary visa holder.  This option will now also be available for eligible same sex spouses.
  • Stepchildren petitions: A U.S. Citizen or Lawful Permanent Resident spouse will also be able to petition for their foreign spouse’s child(ren) under certain circumstances. 
  • Cases of Spousal Abuse: Immigration Law provides legal relief for victims of spousal abuse and same sex spouses will also be able to be considered for these forms of relief. 
  • Relief from Removal: U.S. Citizen and Lawful Permanent Resident same sex spouses will be considered when looking at ties to the community and hardship factors in legal defenses against removal/deportation from the United States.
  • Hardship Waivers:  For those individuals requiring certain waivers to come to the United States or remain in the United States, same sex spouses of U.S. Citizens and Lawful Permanent Residents will now be eligible to apply for such waivers based on hardship factors to their U.S. Citizen and Lawful Permanent Resident Spouse.

Hence, under the law, same sex married couples should be treated the same as any other couple who is lawfully married.  This also means that marriage could pose the same potential risks as it has for married couples in the past.  For example, sometimes immigrants have had petitions filed on their behalf but because of certain quotas they need to wait in order to be eligible for a visa.  In some instances, marriage could result in the immigrant having to wait longer to be eligible for a visa, or even make it so that they are no longer eligible for a visa. As with current practice, immigration will also continue exploring the bona fides of the marriage to ensure that the marriage was not entered into solely for immigration purposes, but rather to create a life together.  Immigration will also be scrutinizing any past marriages to determine whether they were lawfully terminated and whether there may have been fraudulent marriages in the past.

In closing, the Supreme Court’s decision in U.S. v. Windsor opened many new doors to same sex couples trying to immigrate to and remain in the United States.  While this decision is still new and guidance is still being developed, the Obama administration has stated that it will honor the Court’s decision in the implementation of immigration laws.  Attorneys and advocates have supplied the administration with questions and concerns regarding the impact this change will have on specific situations and await responses to their inquiries.  Additionally, as the Supreme Court’s decision takes effect, attorneys and advocates will track how the decision is implemented in various settings within immigration law.  In the interim, anyone who thinks they may now be eligible for benefits or relief as a result of the Supreme Court’s decision should seek legal counsel from an experienced immigration attorney who can help him or her navigate through the complex immigration legal system.