On June 24th or June 27th, the United States Supreme Court is predicted to rule on the constitutionality of the Defense of Marriage Act (DOMA), the holding of which will impact the lives of many Americans, particularly the estimated 28,500 members of bi-national, same-sex couples in danger of separation due to their inability to obtain marriage-based green cards. This inability is due to Section 3 of DOMA, which states, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.'”
The Board of Immigration Appeals, the body responsible for reviewing immigration court decisions, cites Section 3’s definition of marriage when deciding whether to grant marriage based green cards for same-sex couples. However, if DOMA is ruled unconstitutional, immigration judges will no longer be forced to deny these applications based solely on the federal government’s lack of recognition of same-sex marriage.
The fate of DOMA rests on the Supreme Court’s decision in two cases, United States v. Windsor and Hollingsworth v. Perry. Though Hollingsworth addresses the broader question of whether the United States Constitution provides its citizens with a fundamental right to marry, the court’s ruling on United States v. Windsor would decide whether the federal government can treat legally married, same-sex couples differently than legally married, heterosexual couples. If the court rules that all married couples must be treated equally under the law, then it is likely that the United States Citizenship and Immigration Service will begin adjudicating marriage-based green card applications submitted by same-sex couples.
If the Supreme Court does not strike down DOMA as unconstitutional, there is still a possibility that Congress could act and pass legislation recognizing the validity of same-sex marriages entered into within marriage equality states. However, the chance of Congress passing such legislation is low, as Senator Leahy of Vermont already introduced, and subsequently withdrew, an amendment to the currently pending S.744 immigration reform bill that would have adopted that very proposal.
If DOMA is deemed unconstitutional, it should not matter whether the marriage took place within the United States or abroad for green card purposes. Rather the USCIS would look to whether the marriage was valid at the time and place it was entered into.
Immigration firms and immigration equality organizations are optimistically preparing for a large increase in marriage-based green card applications that will likely follow the approaching Supreme Court decision, should the Court strike down DOMA.