On June 26, 2013, the U.S. Supreme Court held that parts of the Defense of Marriage Act are unconstitutional. Thus, persons who are legally married in a state that allows same-sex marriage are entitled to the same federal benefits as other different-sex couples who marry in that state. In other words, the Court’s thinking finally caught up with the thinking of the majority of Americans.
The impact on immigration is monumental. Now, foreign-born nationals in same-sex marriages have the right to obtain a green card. So, do their foreign-born children.
The death of DOMA means that:
- A U.S. citizen can petition their foreign-born spouse and accompany them to their green card interview.
- A foreigner who obtains asylum can petition their same-sex partner to enter the United States as a refugee. If both are in the United States, both obtain status as asylees.
- A foreigner in a same-sex marriage can now claim their U.S. citizen spouse as a qualifying relative.
This last change is vital because many of the applications that allow a foreign national to avoid deportation depend on a valid marriage to a U.S. citizen. For example, an application for cancellation of removal requires a foreign national to prove exceptional and extreme hardship to a qualifying relative (usually a spouse or child). Now, same-sex married couples in deportation proceedings can also reap this benefit.
Previously, legally married same-sex couples were victim to the discriminatory practice of DOMA, which denied federal immigration benefits to same-sex couples.
As always, with any change in the law, it is extremely important that foreigners seek the assistance of an experienced immigration attorney. This is especially true if the foreign national is in proceedings before the Immigration Court.
Although the author is a Board-certified immigration expert, this guide is intended as general information and not specific legal advice. This communication does not create an attorney-client relationship. Schedule a consultation with an attorney to address individual concerns.