On Wednesday, June 26, 2013, the Supreme Court declared the federal Defense of Marriage Act (“DOMA”) unconstitutional, stating that DOMA is “a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” DOMA’s Section 3 defined marriage as between one man and one woman which effectively prevented married same-sex couples from receiving the thousands of federal benefits available to married couples.
The DOMA decision has had an immediate effect for the married same-sex couples living in the United States, as the federal government will now recognize the legality of same-sex marriages. This is a huge victory for same-sex couples wishing to immigrate to the United States on immigrant and non-immigrant visas and for those waiting to bring their same-sex spouse to the United States.
The United States Customs and Immigration Service (“USCIS”) has stated that same-sex couples will be able to apply for marriage-based green cards for their foreign-born spouses, and other family-based immigrant visas. On July 1, 2013 Janet Napolitano, Secretary of Homeland Security, stated, “effective immediately, I have directed [USCIS] to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
In addition to the above general statement regarding DOMA’s effect on immigration, USCIS has specifically addressed two important DOMA-immigration issues. In its “Frequently Asked Questions” USCIS unequivocally states that a U.S. citizens or lawful permanent resident may file a family-based immigrant visa for their foreign national spouse and that the eligibility to petition for the foreign national spouse will be “determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.”
USCIS also addressed the question of whether it matters if the couple lives in a state that recognizes same-sex marriage as a legal marriage. In answer USCIS states that it should not matter whether the couple actually resides in a marriage-equality state when applying for immigration benefits. The government will only look to see whether a marriage was valid in the location where it was celebrated and will only look to laws of the petitioner’s state of residence in limited, fact-based circumstances.