On June 27, 2013, the U.S. Supreme Court overturned the section of the Defense of Marriage Act (“DOMA”) which defined marriage as being only between a man and a woman for purposes of federal law. The court found the section of the law unconstitutional and operating “to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages.” The historic decision opened the door to various federal benefits for same-sex couples, including a variety of immigration benefits.
The federal government began approving immigration benefits to same-sex couples immediately thereafter. Minutes after the Supreme Court published its decision online, a federal immigration judge in New York stopped deportation proceedings involving a Colombian man with a U.S. citizen husband. On June 28, 2013, the U.S. Citizenship & Immigration Services (USCIS) approved the first I-130 Immigrant Petition for Alien Relative filed by a US citizen for his Bulgarian husband.
On June 27, 2013, at the American Immigration Lawyers Association (AILA) Annual Conference in San Francisco, Alejandro Mayorkas, the Director of the USCIS, stated that the agency has kept a list of denials of the I-130 Immigrant Petition for Alien Relative for same-sex spouses which were denied solely on the basis of DOMA since February 2011 (the time when the Department of Justice indicated it would stop legally defending challenges to DOMA in court). Director Mayorkas explained that the agency would now reopen these cases and approve them, assuming there were no other legal barriers to approval.
On July 2, 2013, Janet Napolitano, the Secretary of the U.S. Department of Homeland Security (DHS), added that the agency will work to implement the DOMA decision “so that all married couples will be treated equally and fairly in the administration of our immigration laws.” That same day, the USCIS issued a notice on its website explaining that U.S. citizens and lawful permanent residents in a same-sex marriage to a foreign national may immediately begin sponsoring their spouses for family-based immigration benefits, even in instances where the marriage took place in a state that recognizes same-sex marriage but the couple actually resides in a state that does not, with limited unexplained exceptions. It is worthwhile noting that the earlier mentioned case involving the I-130 approval for the Bulgarian husband involved a couple that married in New York, but resided in Florida.
As a result, same-sex bi-national couples nationwide have begun filing for immigration benefits for their spouses. And same-sex couples not yet married have started to make plans to marry in states where their marriage would be recognized. Same-sex marriage is currently recognized in the following states: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota (effective August 1, 2013), New Hampshire, New York, Rhode Island (effective August 1, 2013), Vermont, Washington and the District of Columbia (Washington D.C.) See the National Conference of State Legislatures’ (NCSL) map of defense of marriage acts and same-sex marriage laws by state.
As with any couple, each case is different and there may be various hurdles to obtaining an immigration benefit for the foreign national spouse, including certain hurdles that are specific to same-sex spouses. These can include bias by the government officer adjudicating the case, difficulty proving the bona fide nature of the relationship where a spouse is not “out” to his or her friends and family or when the couple is unable to add a spouse to his or her employer benefits or other accounts because the state does not recognize same-sex marriage. Please contact an attorney at Minsky, McCormick & Hallagan, P.C. if you would like to know more about the ability of a same-sex couple to now take advantage of federal immigration benefits.