In a 5-4 decision, the Supreme Court of the United States ruled that the federal Defense of Marriage Act (DOMA) is unconstitutional based on the equal protection clause of the 5th Amendment. DOMA’s definition of marriage as being between a man and a woman has long been the main hurdle to receiving immigration benefits for same-sex spouses. Since DOMA’s enactment in 1996, same-sex spouses of US citizens and US permanent residents could not receive immigration benefits due to the restrictive marriage language contained in the federal law. Since immigration benefits in the US are administered at the federal level, even marriages to same-sex couples performed in select states in the US were not recognized as the basis for a visa or green card under federal immigration law. Now, with the June 26, 2013 Supreme Court decision, the path forward for immigration based on same-sex marriage has been cleared.

Effects of the Decision Already Being Felt

The effects of the Supreme Court decision were felt nearly immediately in the immigration law community, as reports indicated that a New York Immigration Judge stopped removal proceedings for a same-sex married couple upon learning of the demise of DOMA. The US citizen spouse in this case filed a family-based immigration petition on behalf of his husband, whom he had legally married in New York. Since at the time of filing DOMA was still federal law, the family petition was denied and the foreign husband placed into removal proceedings on the grounds that the marriage was between two men. Upon the finding of DOMA being unconstitutional, the Immigration Judge overseeing the removal proceedings stopped the case, and therefore recognized the couple’s marriage as valid under immigration law. This is an early indication that DOMA alone stood in the way for immigration benefits for same-sex spouses and that its overturning will result in the eligibility to immigrate to the United States for all legally married same-sex couples.

The Decision’s Relation to Current State Marriage Laws

There are currently 13 States (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington), in addition to the District of Columbia, that have legalized same-sex marriages. There are an additional 7 States (Colorado, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Wisconsin) that have created some form of civil union or rights similar to marriage for same-sex couples. While the restrictive federal definition of marriage found in DOMA has been struck down by the Supreme Court, the federal requirement that a marriage occur for family-based immigration benefits still remains. This means that same-sex couples with civil unions or legal rights similar to a marriage who are not married in their State will still not be able to take advantage of immigration benefits unless they become legally married.

For immigration purposes, legal same-sex marriages that take place in states or countries that allow such marriages may form the basis for immigration benefits even if the spouses live in a state that does not permit or recognize such marriages. Without the restrictive language of DOMA, US immigration law merely requires marriages to have been legal and in good faith in the state or country they took place; it does not require the marriage to be acknowledged in the area the couple may currently reside. Some other federal benefits –such as surviving spouse Social Security benefits– are tied to whether a couple’s marriage is considered valid by the state in which they live. Immigration benefits do not currently have any such requirement, and as such a legally obtained same-sex marriage should form the basis for family immigration even if the couple eventually moves to or currently resides in a state that does not permit or respect same-sex marriage. In such a situation the couple would not receive State and perhaps some non-immigration related Federal marriage benefits, but would still be able to obtain federal immigration benefits.

DOMA Decision and Immigration Reform Prospects

The timing of the Supreme Court’s decision is also beneficial to the prospects of a Senate Comprehensive Immigration Reform (CIR) bill passing. Many powerful Democrats, including Senate Judiciary Committee Chair Sen. Leahy (D-VT) and President Obama, had expressed a desire to include equal provision for same-sex couples in any CIR legislation. Republican members who otherwise support the CIR bill have stated that any such added language of equal provision would result in overwhelming withdrawal of Republican support for the bill. Now, with the Supreme Court ruling DOMA unconstitutional, such language becomes unnecessary for any future immigration bill to offer equal benefits to same-sex spouses and a potential point of contention in passing the CIR bill is now removed.

Conclusion

The benefits that the Supreme Court’s decision will have on countless same-sex couples currently residing in the United States are obvious, but there are also many great benefits for bi-national same-sex couples finally able to come to the United States based on their marriage. With DOMA’s definition of marriage as being solely between one man and one woman no longer controlling, nothing currently stands in the way of US citizens and green card holders petitioning for immigration benefits for their same-sex spouses. After years in limbo, not knowing how to move forward, being torn between a desire to remain in the United States and the desire to be with the people they love, thousands of foreigners married to US citizens and countless same-sex spouses abroad with the dream of coming to the United States with their loved ones will now be able to come to a remain in the United States based on their marriage. We look forward to helping anyone with such a love and desire to make the United States their home with their immigration decisions.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past seventeen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

Zhang & Associates, P.C.

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Tel:	1-800-230-7040, 713-771-8433
Email:	info@hooyou.com
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(07/01/2013)