DOMA Overturned: Federal Immigration Benefits Extended To Bi-National Same Sex Couples

Wednesday, June 26, 2013 - 6:00pm

On June 26, 2013, the Supreme Court issued a 5-4 decision in the case of United States v. Windsor, finding that § 3 of the 1996 Defense of Marriage Act (DOMA) is unconstitutional. DOMA provided that the word "marriage" in any federal law meant only a union of a man and a woman, leading to the denial of countless federal benefits to legally married same-sex couples, including immigration benefits. For years, bi-national couples were unable to receive the same immigration benefits available to heterosexual couples, often leading to the forced separation of families. However, now that DOMA has been found unconstitutional, the decision allows for immediate recognition by the federal immigration agencies of same-sex marriages that were valid in the jurisdictions where they were performed.

In the majority opinion, Justice Kennedy wrote that "[t]he federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." The majority concluded that the statute is in violation of the Fifth Amendment's guarantee of equal protection under the law.   In general, under immigration law, if a couple's marriage is valid where it is performed, it is valid for purposes of immigration law. Now that DOMA has been struck down, same-sex individuals legally married in jurisdictions recognizing same-sex marriage will be eligible for a range of benefits under the immigration laws from which they are currently excluded. These benefits include: the right to be petitioned for by a same-sex U.S. citizen spouse; the right to be granted derivative status as the spouse of a non-immigrant visa holder, or to be included in that spouse's green card application; derivative asylee or refugee benefits; and the right to be considered as a qualifying relative for purposes of cancellation of removal.   President Obama has applauded the Supreme Court's decision in Windsor, and he has directed the Attorney General to work with members of his Cabinet to ensure that the decision is implemented swiftly and smoothly. Since there is now no impediment to the recognition of same-sex marriages for purposes of immigration law, couples who otherwise qualify may immediately begin filing for these benefits. Bi-national, same-sex couples should consult with experienced immigration counsel to understand how this decision impacts the foreign national's eligibility for permanent resident status or other immigration benefits.