USCIS Provides Immigration Benefits for Same-Sex Married Couples, July 2013

U.S. Supreme Court Declares Section 3 of DOMA Unconstitutional, Provides Important Opportunity for Same-Sex Married Couples to Receive Immigration Benefits.

In 1993, the U.S. Congress enacted the so-called Defense of Marriage Act (DOMA). Section 3 of DOMA barred the federal government, including the Department of Homeland Security (DHS), from recognizing any marriage that was not between one man and one woman. Under DOMA, DHS could not approve an immigration petition filed by a U.S. citizen or lawful permanent resident spouse on behalf of his or her foreign national spouse, even if the couple was married in a state or foreign country that recognized same-sex marriage.

On June 26, 2013, in United States v. Windsor, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. The U.S. Supreme Court’s decision to strike down Section 3 of DOMA has very important immigration implications for Lesbian, Gay, Bisexual and Transgender (LGBT) foreign nationals and their U.S. citizen and lawful permanent resident spouses. LGBT foreign nationals will now be eligible for the same immigration benefits through marriage in immigration as long as they have been married in a state or country where same-sex marriage is legal. We presume that USCIS will also recognize step-child and step-parent relationships, and fiancée relationships involving same-sex spouses.

Immediately after the Supreme Court’s decision declaring Section 3 of DOMA unconstitutional, President Obama immediately instructed his cabinet to implement the decision “swiftly and smoothly.” Janet Napolitano, the Secretary of Homeland Security, then “directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” Indeed, just days after the Supreme Court’s declaration that Section 3 of DOMA was unconstitutional, USCIS approved the first marriage-based petition for a Florida couple, legally married in New York and residing in Florida.

In order to qualify for an immigration benefit based on a same-sex marriage, the marriage must be legal in the state or country in which the marriage was celebrated. Beginning in August 2013, same-sex marriage will be legal in thirteen (13) states (Massachusetts, Iowa, New Hampshire, Connecticut, New York, Vermont, California, Delaware, Maine, Maryland, Minnesota, Rhode Island, Washington) and the District of Columbia. It is not necessarily required that the same-sex couple resides in the state in which they were married. It is only necessary that the couple be married in a state that recognizes same-sex marriage as a valid and lawful marriage. For example, a same-sex couple that was married in Massachusetts but resides in Colorado would be eligible to receive an immigration benefit based on their marital relationship.

Kolko & Associates, P.C. is very pleased to begin assisting same-sex married couples in filing for immigration benefits. We are currently reviewing and accepting qualified cases. For any person or family considering eligibility for this benefit, please email or contact our office by phone to speak with our legal team.