The Demise of DOMA, and its Impact on Immigration Law
Cynthia Irvine and Meghan Kelly-Stallings
This summer the Supreme Court overturned Section 3 of the Defense of Marriage Act (DOMA). Under DOMA, federal agencies were required to define marriage as a union between one man and one woman, preventing same-sex couples from accessing more than 1,000 federal programs and benefits available to opposite-sex couples, including federal immigration benefits. The court’s groundbreaking opinion in Windsor v. United States has led to rapid and significant change as federal agencies, including U.S. Citizenship and Immigration Services (USCIS), adjust their policies to provide benefits that were previously unavailable to same-sex couples. The end of DOMA now gives noncitizens the ability to seek and obtain immigration benefits based on marriage to their same-sex partners.
Although only a limited number of states in the U.S. currently grant same-sex partners the right to legally marry, any lawful state marriage will now be recognized federally to grant immigration benefits. This policy shift provides new possibilities to immigrants seeking to obtain or maintain lawful immigration status based on their same-sex marriage. The recognition of same-sex marriage permits a U.S. citizen (or lawful permanent resident) spouse to sponsor their spouse and their spouse’s children in applications for lawful permanent resident status (a “green card”). New opportunities have also emerged for the same-sex spouses of foreign students and workers, who may now obtain visas to reside lawfully in the U.S. while their spouse maintains a valid student or employment-based visa.
The adoption of a more inclusive definition of marriage allows U.S. citizens to seek fiancé visas for their same-sex partners living abroad. An approved fiancé visa allows the foreign-born partner to enter the U.S. for the purpose of marrying the U.S. citizen and applying for his or her green card. This benefit is particularly important for noncitizens living in countries where same-sex marriage is illegal, as the marriage itself may be performed in the United States.
The end of DOMA gives new hope to certain immigrants facing removal from the U.S. whose cases require the presentation of evidence of the hardship that their removal would cause to their immediate family members (parents, spouse, and children) with lawful status. Immigration judges must now consider the hardship posed to the individual’s same-sex spouse and even that spouse’s minor children, as such children are considered the immigrant’s children under immigration law. Even when hardship to an immediate relative is not a prerequisite for relief from deportation, the government should still give discretionary weight to family ties formed as a result of a same-sex marriage.
The end of DOMA means more and better options for noncitizens married to, or planning to marry, their same-sex partners. Even with these new possibilities, immigrants in same-sex relationships should confirm whether other factors, including past immigration and criminal history, might pose additional barriers to obtaining lawful status. No lawful marriage with a U.S. citizen or permanent resident is a guarantee for a green card. Immigrants in same-sex or heterosexual relationships should review their case with a reputable immigration attorney prior to filing applications for benefits.
Please contact attorneys Cynthia Irvine or Meghan Kelly-Stallings to schedule your consultation appointment for any and all types of immigration matters. 253-520-5000.