DOMA Decision: Same-Sex Couples Can File Marriage-Based Immigration Petitions
Last week, the U.S. Supreme Court in United States v. Windsor, 570 U.S. ___ (2013) ruled that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. Shortly after, Janet Napolitano, the Secretary of the Department of Homeland Security (DHS), announced that President Obama had directed federal departments to ensure that the decision and its implications for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. This means that same-sex couples who are legally married under the laws of any U.S. state or foreign country that recognizes same-sex marriages may sponsor and be the beneficiary of marriage-based relative visa applications where one spouse is a U.S. citizen or lawful permanent resident. Some immigration practitioners report that they have already received approvals for petitions on behalf of same-sex couples that had been filed prior to the DOMA decision, and held at the U.S. Citizenship and Immigration Services (USCIS) until now.
Below is a link to a webpage containing Secretary Napolitano’s statement and a list of FAQs regarding the immigration implications of the Supreme Court decision. The first point is that any U.S. citizen or lawful permanent resident may file a Form I-130 petition to sponsor his or her spouse and such petition will not be denied merely because the marriage is not between a man and a woman. The second point is that individuals will be permitted to benefit from the Supreme Court decision even if they do not live in a state that recognizes same-sex marriage. As long as an individual was married in a state or country that does recognize same-sex marriage, they may take advantage of this immigration benefit. At this time, it is not clear whether a civil union or domestic partnership would provide the same benefit as a state-recognized same-sex marriage.
The immigration lawyers at Davis Wright Tremaine LLP are available to answer your questions and to assist you in filing a marriage-based petition if you are eligible. Please note that the ruling does not change the current law with respect to marriage-based visas on behalf of a spouse who is currently in the U.S. out of status or in an undocumented status. All such individuals should seek the advice of counsel before applying for a green card.