Under U.S. immigration law, citizens and lawful residents have long been eligible to petition their family members for immigration benefits. However, under 1996’s Defense of Marriage Act (DOMA) marriage was defined as a legal union between one man and one woman under federal law. As a result, government agencies such as the United States Citizenship and Immigration Service (USCIS) could not grant benefits to same-sex couples, even if that marriage is valid in a particular state or country.
I can recount many same-sex couples sitting across from me in my office seeking to apply for immigration benefits or to stop deportation on the basis of their marriage. I also recall an entrepreneur from the Netherlands that invested several hundred thousand dollars in a successful California-based web start-up but could not secure a temporary dependent visa for his husband.
Much to the relief of these couples and many others, the Supreme Court, in a historic June 26 ruling, overturned the section of DOMA defining marriage as between a man and a woman. Following the ruling, same-sex married couples may be eligible for a variety of U.S. immigration benefits.
Gay and lesbian couples facing deportation or wanting to file marriage petitions for their same-sex spouses are now eligible for benefits. The USCIS will apply the same standards as in a heterosexual marriage to determine whether the marriage is legitimate in the eyes of the law.
In early July, Homeland Security Secretary Janet Napolitano said that her department is working to ensure that the Supreme Court's ruling is swiftly implemented. In the weeks since, government agencies were quick to announce their compliance with the ruling, the breadth of the ruling’s affect on immigration benefits is starting to take shape, and early results are trickling in.
According to UCLA Law School’s Williams Institute, there are about 32,000 same-sex couples living the U.S. comprised of both a citizen and a non-citizen. The ruling permits U.S. citizens or lawful permanent residents to convey immigration benefits to their same-sex spouses in a matter no different from heterosexuals.
For example, a U.S. Citizen or Lawful Permanent Resident can now:
- Act as a qualifying relative for purposes of a Waiver of an Inadmissibility ground in Removal Court or before USCIS;
- Petition their spouse for Permanent Residence (“Green Card") in the U.S.;
- Petition their spouse for an Immigrant Visa at a U.S. Embassy abroad.
An immigrant applying for a Green Card in the U.S. or a visa at an Embassy outside of the U.S. can now:
- Include their same-sex spouse as a derivative in their application (such as in employment-based sponsorship);
- Add their same-sex spouse as a dependent to certain non-immigrant classifications (inclusive of the E, L, and H visas);
- Same-sex bi-national couples that have had previous petitions denied should explore appeals or re-filing options. Individuals that have been ordered deported and now may benefit from the Supreme Court’s anti-DOMA ruling should explore whether a motion to reopen may be available to them.
It is important to bear in mind that in order to be valid for immigration purposes, same-sex marriages -- just like heterosexual ones -- must be legal in the jurisdiction it was entered into. The marriage must also be bona fide, and not entered into for the purpose of evading immigration law. USCIS will examine the history of the relationship, including how the couple met, the ties they have established over time, and whether they genuinely intended to establish a life together, Gay clients have been asking me lately whether not having a child together necessarily means USCIS will find an invalid marriage. The answer is no. The existence of a child born of the marriage has never been a condition for the approval of a heterosexual petition, and it will not in future same-sex petition adjudications.
On June 30, Bulgarian immigrant Traian Popov, who lives in Florida with his American Husband Julian Marsh, was the first to benefit from the immigration ripples of the anti-DOMA ruling. Mr. Popov, 41, said he had been living legally in the United States for 15 years with a series of student visas, according to the NY Times. Now a permanent resident, Popov no longer will need to maintain his student status to remain in the U.S. legally. Marsh and Popov’s case is a milestone for civil rights in the U.S. and our first example of how the Court’s decision will reverberate through history.