02 July 2013

Same Sex Marriages Now a Valid Basis for Immigration Benefits. (U.S. v. Windsor, 6/26/13)
On June 26, 2013, in a 5-4 decision, the U.S. Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA), a law that prohibited the federal government from recognizing marriages of same-sex couples for all purposes including immigration benefits, violated the equal protection clause of the Fifth Amendment. (U.S. v. Windsor, 6/26/13).

In a separate 5-4 decision on the same day, the high court held that private parties did not have standing to defend California’s Proposition 8, California’s voter-approved ballot measure barring same-sex couples from state-sanctioned marriage, restoring the decision to allow same-sex couples to marry in California. (Hollingsworth v. Perry, 6/26/13).

Upon announcement of the decisions, President Obama directed the Attorney General to work with other members of his Cabinet to review all relevant federal statutes to ensure that these decisions, including their implications for immigration benefits, is implemented swiftly and smoothly. Janet Napolitano, Secretary of Homeland Security, also issued a statement confirming that DHS is working with the Department of Justice, to implement the decision so that all married couples will be treated equally and fairly in the administration of U.S. immigration laws.

The Supreme Court’s ruling in the DOMA case will guarantee all lawfully married couples equal rights regarding immigration benefits and protections. The implications of this ruling with regard to immigration benefits alone are tremendous. Not only can same-sex marriages be the basis for immigrant petitions for foreign spouses, it can be the basis of step-parent/step child petitions, derivative benefits for non-immigrant visas of all types as well as political asylum. The spouses and step children in and of such marriages can also now qualify for certain forms of relief against removal, such as cancellation of removal.

However, it must be understood that not all same-sex couples will qualify for U.S. immigration benefits. Only 12 states and Washington, D.C., as well as 15 countries, recognize same-sex marriage. As of now “civil unions” and “domestic partnerships” do not appear to be covered by the ruling.

Immigration authorities have traditionally recognized marriages based upon where they took place as opposed to where the couple resides when the applications are filed. The continued application of that rule is expected, affording couples immigration benefits when they marry in a stated that recognizes same-sex marriages but reside in a state that does not.

Furthermore, it appears that the United States Citizenship and Immigration Services (USCIS) has kept a list of all I-130 immediate relative petitions filed by same-sex bi-national couples that were denied since this administration stated it’s opinion that DOMA was unconstitutional, and is now prepared to act accordingly. Just two days after the historic Supreme Court ruling striking down DOMA, USCIS approved its first same-sex bi-national I-130 petition for Julian Marsh and Traian Popov of Fort Lauderdale, Florida.

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