On June 26th the Supreme Court found the Defense of Marriage
Act (DOMA) to be unconstitutional, striking down the law that
prevented same-sex marriages, validly entered into in states
recognizing such marriages, from being recognized by the
federal government for benefits purposes. There are more than
1,000 federal benefits extended to heterosexual married couples
that were previously denied to gay married couples. Among
such benefits was the recognition of same-sex marriages for
immigration purposes. Post DOMA, gay foreign nationals can
more easily bring their same-sex spouses to the US while traveling
for business, education, or pleasure, while gay US citizens legally
married to or intending to marry a foreign national of the same
sex can sponsor their spouse or fiancé for a visa to live with them
permanently here in the United States.
Today same-sex marriage is recognized in 15 countries
worldwide. Massachusetts was the first state to recognize
same-sex marriage in 2004. Since then 12 other states and
the District of Columbia have recognized same-sex marriage.
Several states recognize civil unions, and many states expressly
prohibit same-sex marriage. For many years gay US citizens in
bi-national relationships have been denied the ability to sponsor
their partners, despite their being in long-standing committed
relationships. Many same-sex partners of US citizens have been
deported from the United States, leading many US citizens to
leave and live abroad in order to be with their loved ones. For
17 years DOMA expressly prohibited the federal government
from recognizing such relationships, even if legally recognized in
various states such as Massachusetts.
With the death of DOMA, gay American citizens can now
sponsor their lawfully married spouses for permanent residence.
If they are not yet married and their loved ones reside abroad,
they can sponsor them for a fiancé visa to travel to the US for the
purpose of getting married, provided they can demonstrate that
they will be married in a state that recognizes same-sex marriage.
United States Citizenship and Immigration Services (USCIS)
has issued guidance that indicates they will look to the law of
the jurisdiction where the marriage was celebrated to determine
whether the marriage is valid. Thus, marriages entered into in
one of the 14 other countries that recognize same-sex marriage
can also support a petition for immigration benefits. Like all
marriage-based petitions, couples seeking immigration benefits
based on marriage face a high level of scrutiny, particularly as it
relates to the bona fides of their relationship. This scrutiny will
likely be higher for same-sex couples in states where gay marriage
is not recognized or by examiners who don’t personally agree with
the Supreme Court’s decision.
The death of DOMA also makes it easier for foreign nationals
in same-sex marriages to travel to the US for business, pleasure,
work, or education. While opposite-sex spouses and their
children have long been able to accompany their foreign national
spouses to the US in a dependent visa category that allowed them
to remain in the US for the same period as their spouse, gay
couples have historically been denied this right. More recently
same-sex partners have been allowed to accompany their spouses
to the US, not under a dependent visa of the same duration, but
instead on a visitor’s visa limited to six months at a time. This
required the “visiting” spouses to renew their “visitors” visa every
six months even though their spouses may have been working on
a three- or five-year visa. With DOMA out of the way, USCIS can
now issue dependent visas in the same visa category and for the
same duration as the primary visa holder to any legally married
same-sex spouse.
The Obama administration has been quick to respond to the
Supreme Court’s decision, and both the Department of Homeland
Security (DHS) and the Department of State (DOS) have issued
preliminary guidance. USCIS has actually begun approving
same-sex petitions filed prior to the Supreme Court’s decision and
is accepting new cases. While many issues remain unanswered,
and further guidance from both DHS and DOS is anticipated,
it is clear that bi-national same-sex couples, post DOMA, have
opportunities that didn’t previously exist, making this the
opportune time to speak with an immigration attorney familiar
with such issues.
