By Nancy E. Miller and Steven J. Malm
Last week, the Supreme Court struck down the law preventing U.S. citizens or lawful permanent residents from conveying immigration benefits to their same-sex spouses. The Defense of Marriage Act (“DOMA”), Section 3, had defined marriage under federal law as between one man and one woman and forbade recognition of same-sex marriages that were lawful where entered into. With the overturning of this section of DOMA, same-sex married couples may avail themselves of the full array of U.S. immigration benefits.
Secretary of Homeland Security Janet Napolitano announced that her agency would immediately begin implementation of the new law. True to her word, the first same-sex marriage family petition was approved on Friday. Secretary of State John Kerry has said that his agency will also implement the law according to the Supreme Court ruling.
U.S. immigration benefits available to same-sex married couples are now the same as for heterosexual couples. Such benefits include the ability to petition for a spouse or a step-child to get a green card, to include a spouse as a derivative on a green card application, to claim a same-sex spouse as a qualifying relative for waiver purposes and as a qualifying relative for other forms of relief from removal. The words marriage and spouse appear repeatedly in the Immigration and Nationality Act. They now encompass same-sex marriage and a same-sex spouse. The benefits available under U.S. immigration law based on marriage are too numerous to list.
Same-sex couples in marriages or contemplating marriage can act immediately to seek out immigration benefits. The United States Citizenship and Immigration Services (“USCIS”) will apply the same standards as in a heterosexual marriage to determine the bona fides of the marriage. They will examine factors such as how the parties met, how the relationship progressed over time, the volume and quality of joint documentation and whether they have commingling of finances, insurance policies, shared bills, trips together, photos, whether the parties cohabitate, affidavits of persons familiar with the marriage, and any other probative evidence. The fundamental question asked by USCIS is whether the parties intended to establish a life together at the time of marriage. Note that the existence or non-existence of children born of a marriage has never been a necessary condition to establish the good faith nature of a marriage.
A growing number of states, including California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and the District of Columbia, have legalized same-sex marriage. That law had been “on-hold” in California due to federal litigation. However, after the Supreme Court decision on Wednesday, California has resumed issuing marriage licenses to same-sex couples. In addition, a number of countries and sub-national jurisdictions have legalized same-sex marriage. Because the jurisdictions with legalized same-sex marriage remain in the minority, same-sex couples wishing to marry will still need to consider where same-sex marriage is legalized where they live. They will need to be careful to satisfy jurisdictional requirements to marry if they must go elsewhere for their weddings. For persons residing in countries where same-sex marriage is not legalized, the fiancé(e) visa option can be explored or possibly travel to a country where same-sex marriage is legal.
Persons who have been denied immigration benefits have remedies immediately available to them. Persons who may have had their visa petitions denied in the past because U.S. immigration law did not recognize same-sex marriages should consider a motion to reopen or re-filing of the paperwork. In some cases, persons may have been ordered removed or deported from the U.S. on account of the law’s failure to recognize their same-sex marriages. A motion to reopen to the Immigration Court or the Board of Immigration Appeals may be available in this situation. However, motions to reopen have time limitations so anyone affected by the change in law should seek the advice of an experienced and knowledgeable immigration attorney immediately.
Same sex couples where one party is a non-citizen have waited many years for the opportunity to live lawfully in the United States without fear of separation due to deportation. That opportunity has arrived. It is time to take advantage of it.