The attorneys of Minsky, McCormick & Hallagan, P.C. applaud the U.S. Supreme Court’s decision in United States v. Windsor to overturn the Defense of Marriage Act (“DOMA”) by finding it unconstitutional. Writing for the majority, Justice Kennedy wrote that “DOMA violates basic due process and equal protection principles” found in the Constitution, and that it “operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages.” The decision reiterates the long standing legal tradition that only states have the authority to define marriage, and requires the federal government to recognize valid same-sex marriages for federal benefits.
The decision states that there are over 1,000 benefits granted to spouses by the federal government, benefits which will now be available to same-sex couples. Most importantly to the clients of our firm, this decision opens the door to immigration benefits for same-sex couples, including the ability for the spouse of a non-immigrant to obtain dependent status in the U.S. (e.g. the spouse of an F-1 student may apply for F-2 status, the spouse of an H-1B worker may apply for H-4 status, the spouse of a TN worker may apply for TD status, the spouse of an L-1 worker may apply for L-2 status, and the spouse of an O-1 worker may apply for O-3 status), and the ability of a U.S. citizen or permanent resident to sponsor a spouse for permanent resident status (i.e. “green card”). Janet Napolitano, the Secretary of the U.S. Department of Homeland Security (DHS), stated that the agency will work to implement the decision “so that all married couples will be treated equally and fairly in the administration of our immigration laws.”
While the ruling will become law 25 days after the decision, the federal agencies involved in issuing immigration benefits to spouses, such as the U.S. Citizenship & Immigration Services (USCIS) and the U.S. Department of State (DOS), may take much longer to update their procedures for accepting applications for same-sex spouses. As with any couple, each case is different and there may be various hurdles to obtaining an immigration benefit, such as the income of the sponsoring U.S. citizen or permanent resident, the prior immigration and criminal history of the foreign national spouse, or the ability to prove a bona fide 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.