On June 26, 2013, the United States
Supreme Court invalidated the Defense of Marriage Act in United
States v. Windsor. The decision struck down a key section of DOMA,
which defined marriage as between a man and a woman for the purpose
of federal law.
In a 5-4 decision authored by Justice Anthony M. Kennedy, the
United States Supreme Court determined that Section 3 of the
Defense of Marriage Act violated equal protection guaranteed under
the Fifth Amendment of the Constitution. Section 3 prohibited any
federal benefits for same-sex spouses and defined marriage, for
federal purposes, as between a man and a woman. Section 2 allows
states not to recognize such same-sex marriages. It was not before
In 1996, when the bill was passed and signed by then U.S.
President William J. Clinton, not a single state recognized
same-sex marriage. Now 13 states and the District of Columbia
recognize it (effective Aug. 1, 2013).
The timing was especially interesting when Republican senators had
rejected any attempt to expand same-sex immigration benefits in the
bipartisan Senate Immigration Reform Bill. The ruling essentially
makes such consideration irrelevant.
It is reported that this decision will impact some 1,000 federal
benefits. However, I am only going to address one, immigration
benefits for same-sex spouses. Under Section 3 of DOMA, the federal
government would not recognize same-sex marriages for immigration
benefits. Therefore, a U.S. citizen, or Lawful Permanent Resident
spouse, could not petition for his/her spouse to become a lawful
In addition, a spouse would not be accorded derivative asylum
benefits or derivative benefits as the spouse of one who is the
beneficiary of some other family-based petition.
On July 1, 2013, Janet Napolitano, secretary of the Department of
Homeland Security, announced that the department would immediately
take steps to implement the decision and John F. Kerry, secretary
of the Department of State, also announced that state would
implement the decision as it pertained to consular processing. The
departments have always recognized the place of performance of the
marriage as the law determining validity.
What this means is that individuals who were married in a state
where same-sex marriages are permitted, e.g., Massachusetts, may
immediately file for immediate relative visas for their spouses,
even if they live in a state that specifically does not recognize
gay marriages performed in other states, e.g. Pennsylvania.
However, other federal benefits may not be so clear. Some federal
statutes or regulation look the state of residence. Step-parents
will also be able to petition for their spouses children under the
same rules as heterosexuals.
In addition, persons should be able to file for fiancée visas
provided they establish they will marry in a state and or country
permitting same-sex marriages. An individual granted admission as a
fiancée must marry within 90 days to the person named as
Since the status of civil unions remains unclear, it would be the
safest course at this time to marry in a state permitting
The burden of proving the bone fides of the relationship still
remain in addition issues of support and medical examinations will
be the same as for heterosexual marriages.
All other immigration restrictions remain. Unless grandfathered
under 245i of the Immigration and Nationalization Act (INA) persons
who entered without inspection will not be able to adjust. Any
unlawful presence, or criminal activity bar, remains unchanged.
Persons presently in proceedings or who have been ordered removed
and not left the country, will have to proceed in immigration
In addition to the family petitions, persons who were abused in a
same-sex marriage will now be eligible to self-petition.People who
were denied the right to have an adjudication of a visa petition
during immigration proceedings should be able to reopen the case
and or remand it if before the Board of Immigration Proceedings for
consideration of the marriage.
This is an exciting new era in immigration law, where many of our
citizens and their spouses will no longer be treated as a second
class. It is exciting to see how fast the affected departments
reacted positively to the new circumstances.