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Same Sex Marriage & Immigration

Posted by attorney J Ferrari

As our LGBT clients and friends are aware, President Obama has announced that his administration will no longer defend the mis-named "Defense of Marriage Act" (DOMA). This announcement does not invalidate or repeal DOMA. It only means that, in court challenges, the Department of Justice will now take the position that the law in unconstitutional.

Because DOMA is still the law, USCIS will continue to deny petitions for same-sex spouses, and it is presently unknown when that will change.

Effectively, the ball is in Congress's corner. Although the courts will likely invalidate DOMA within the next couple years, it is possible that Congress could try to continue to define marriage in a discriminatory way by passing a new version of DOMA. It is therefore important that US Citizen LGBTs continue lobbying their Senators and Congressional Representatives to repeal DOMA.

For now, a decision on whether to marry should be made without the expectation that that marriage will result in the foreign LGBT spouse getting the green card. As such, the LGBT spouse should continue to look for opportunities to immigrate through employment.

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