On June 26, 2013, the Supreme Court of the United States struck down a provision of the federal Defense of Marriage Act (DOMA) that denied federal benefits to same-sex partners. In a 5-to-4 ruling in United States v. Windsor, the court held that “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” This decision is likely to have profound impact in the area of immigration law.
Under the Immigration and Nationality Act (INA), the federal authorities are supposed to have “full faith and credit,” and respect and recognize marriages that were valid in the location of the marriage. However, prior to the Supreme Court’s recent decision, this recognition or reciprocity was limited under DOMA, in that the government did not recognize same-sex marriages for purposes of immigration – even if the marriage was legally valid in the location of where it took place.
Furthermore, the Supreme Court’s decision now obligates U.S. Citizenship and Immigration Services (USCIS) to recognize lawful same-sex marriages and give other federal benefits not afforded to before.
Most importantly, USCIS is now bound to issue visas and/or Green cards to same-sex spouses through employment-based, family-based, and other non-immigrant applications/petitions as long as the marriage is legally valid. Furthermore, same-sex spouses are now also eligible to receive other federal benefits, such as Social Security from their spouse.
However, the Supreme Court’s decision does have its limitations. For example, while couples who legally wed in states that recognize same-sex marriage may now proceed with their immigration petitions, the new rules don’t apply to couples in other states. Even though a same-sex marital couple may live in a state that does not recognize their union, their marriage is legally valid for immigration purposes only if it was performed or “celebrated” in a state (or country) that officially and legally recognizes same-sex marriages.
In conclusion, while the Supreme Court made a landmark decision which affects the rights of many, it still has its limitations. One should be advised to make sure that their same-sex marriage is valid, especially if they are being wed in the United States.
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.
This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.
