What the U.S. Supreme Court’s DOMA Decision Means for Immigration Benefits

Michael A Harris

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Immigration Attorney

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Posted about 1 year ago. 1 helpful vote

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Today the U.S. Supreme Court has ruled in U.S. vs. Windsor that the Defense of Marriage Act (DOMA) is unconstitutional by depriving gay, lesbian, same-sex, and LGBT couples from marrying the person that they love. The decision was authored by Justice Anthony Kennedy, which he principally noted that: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." This decision is a landmark decision which will now allow gay and lesbian couples to share federal benefits and protections (as well as state benefits and protections as provided under state law). What is also foreseeable is that this should also allow U.S. citizens, lawful permanent residents, temporary nonimmigrants, and other foreigners to seek federal immigration benefits for their gay and lesbian spouses. So, the question now is what benefits under U.S. Immigration Law could this potentially benefit same-sex, gay, lesbian and LGBT couples now that DOMA is overturned? Here’s a brief list of the possible changes:

  1. Petitions for Immediate Relatives. Under current law, U.S. citizens are afforded the right to petition for an immediately available immigrant visa or green card for their spouses and children (under 21 years of age). Without DOMA being a valid law, now ALL U.S. citizens should be allowed to petition for their spouses under the law. This would also presumably allow same-sex couples to petition for their stepchildren under the law, thus extending the reach of full rights and benefits under U.S. Immigration Law.
  2. Petition for Alien Relatives. Similar to the Immediate Relative category, lawful permanent residents (LPRs) who have green cards should now be allowed to petition for their spouses and stepchildren from same-sex marriages. If the proposed legislation in Congress to reform immigration laws passes, then LPRs will be allowed to petition for spouses as an Immediate Relative.
  3. Accompanying or Following to Join Spouses. Spouses and children of same-sex marriages should now be allowed to accompany or follow to join their loved ones due to an approved I-140 Immigrant Petition, I-130 Petition for Alien Relative, or an I-526 Immigrant Petition by Alien Entrepreneur. This should allow spouses to seek to file an I-485 Application for Adjustment of Status or an Immigrant Visa Application based on these approved petitions.
  4. Qualifying Relatives for Waivers ofInadmissibility. Under U.S. Immigration Law, when a foreign person is inadmissible or deportable from the United States they may need to seek a Waiver of Inadmissibility, Cancellation of Removal, or other Deportation Relief. To qualify for most of these forms of relief, the foreign person must have establish how a “qualifying relative," who is a U.S. citizen or LPR, will suffer a form of hardship if the foreign spouse is cannot rejoin them in the U.S. or if they are deported. Some of the forms of relief that may be available include the new Provisional Unlawful Presence Waiver, INA Section 212(h) Waivers, INA 212(i) Waivers for Fraud or Misrepresentation, or Non-LPR Cancellation of Removal. The Court’s decision should now have a profound effect on Immigration Court, and Department of State.
  5. TemporaryNonimmigrants. Spouses and their children should now be entitled to immigration benefits to accompany foreign persons who have been approved for business visas, temporary visas, and other nonimmigrant benefits. Examples include the spouse of an H-1B nonimmigrant worker or an L-1A executive or manager. In the past a same-sex spouse was not entitled to derivative nonimmigrant status to accompany the principal worker; they have been allowed under Department of State and USCIS policy to travel here under tourist visas.
  6. Asylum, Refugees, and more. Same-sex spouses and their children should be able to obtain immigration benefits as the dependent spouses and children of a person claiming asylum. Same-sex spouses of refugees would also become eligible.
  7. Citizenship. If the spouse of a U.S. citizen has a green card and has been “living in marital union" with them for 3 years, then an otherwise eligible LPR spouse can apply for citizenship without having to wait the typical 5 years.

The full reach of the DOMA decision will be flushed out in the coming days, weeks and months ahead. The above list is not exhaustive and will be updated in the future. I am sure that USCIS, CBP, ICE, and the Department of State should be issuing new policy guidance in the future. But today is a great day for America where full rights, liberties and benefits under the law are equal.

Additional Resources

http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf http://www.state.gov/documents/organization/87206.pdf http://www.uscis.gov/USCIS/Laws/Memoranda/2011/August/Cohabitating_Partners_PM_081711.pdf

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