By Nancy E. Miller and Steven J. Malm
In an historic decision, 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.
Under U.S. immigration law, marriages are considered valid for immigration purposes if they are valid in the state or country where the marriage took place and the state in which the parties will live. DOMA was an exception to that law. Now, thanks to the Supreme Court, same-sex marriage is equivalent to opposite-sex marriages. Thus, the U.S. immigration benefits available to same-sex married couples are the same as for heterosexual couples. Such benefits include the ability to petition a spouse for 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 may act immediately to seek out immigration benefits. The decision is effective as of Wednesday and comes from the highest court in the land. As such, it is final. For persons in a same-sex marriage, they may file petitions and green card applications right away. 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, the Supreme Court also issued a decision effectively lifting the hold and, thus, affirming the legality of same-sex marriage in California. 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 of Board of Immigration Appeals may be available in this situation.
The Supreme Court’s decision comes as a result of years of struggle by same-sex couples for equality. Wednesday’s landmark ruling is not only historic but will put an end to the suffering of countless same-sex couples. Any person adversely affected by DOMA in the immigration context will want to sort through his or her options without delay. The decision can be looked at as not just benefitting persons in the future, but remedying damage already done. And, of course, same-sex couples and their loved ones can take a moment to breathe a sigh of relief.