Same-Sex Partnerships Recognized Under Immigration Law

Kelli Allen

The End of DOMA:

New Beginnings for Immigration Law In what will likely be regarded as one of the more impactful decisions in high court history, the US Supreme Court struck down a key provision of the Defense of Marriage Act on June 26, 2013. Commonly abbreviated as DOMA, the 1996 law signed by President Clinton famously (or infamously, as it were) defined marriage as “between one man and one woman.”

For over a decade, those relatively few words had a tremendous influence over state and federal laws, including immigration legislation. Because the definition of marriage was restricted to heterosexual unions, it had serious implications for foreign same-sex spouses seeking to immigrate to the United States. In United States v. Windsor, the Court ruled that those words – and that section of the law – were unconstitutional.

In a 5 to 4 decision, the Court held that DOMA violated the equal protection and due process guarantees of the Constitution. The Court’s decision is projected to have a far-reaching impact on immigration law.

Immigration and DOMA

The US Immigration and Nationality Act requires immigration officials to recognize marriages according to the laws of the nation where they took place. Generally, the United States applies principles of “reciprocity” to foreign marriages, which means it accepts overseas marriage licenses as legally valid. After DOMA went into effect, however, the federal government no longer recognized any form of same-sex marriage. This effectively put a stop to any marriage-based federal immigration benefits for lesbian and gay couples.

The Impact of United States v. Windsor

The Supreme Court’s ruling in United States v. Windsor now requires US Citizenship and Immigration Services to acknowledge legal same-sex marriages, so long as the marriage is legally recognized in the state or country in which it was performed. This means that gay and lesbian couples are entitled to the same types of federal benefits available under immigration laws as heterosexual husbands and wives. Now that DOMA has ended, same-sex spouses can also immigrate to the United States based on an immediate relative petition filed by the U.S. citizen spouse. Same sex spouses also qualify as derivative beneficiaries of principal non-immigrant visa holders.

When DOMA was in place, many multinational same-sex couples were forced to live in separate countries thousands of miles apart. For most of these families, the Act created a substantial emotional and financial burden. The demise of DOMA opens the door to comprehensive changes in the area of immigration. In addition to paving the way for immigration visas for same-sex foreign spouses, the Supreme Court’s ruling also allows gay and lesbian couples to sponsor non-biological children and take advantage of K-visas.

The US Citizenship and Immigration Services is already processing visa applications for same-sex spouses. Despite a great deal of progress, there is still a long way to go. As federal agencies adjust to the impact of the Supreme Court’s decision, the rules in the post-DOMA world continue to evolve. If you have questions about the Court’s decision that struck down DOMA and its implications on your immigration situation, it is important to talk to a qualified immigration attorney.

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