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U.S. Supreme Court Rules DOMA Unconstitutional, Bi-national Same-Sex Couples Can Now Receive Immigration Benefits

The decision on June 26, 2013, issued by the United States Supreme Court in United States v. Windsor, holding that Section 3 of the Defense of Marriage Act is unconstitutional, will benefit same-sex married couples in which one spouse is not either a U.S. Citizen or Lawful Permanent Resident. The Defensive of Marriage Act (DOMA) is a federal law that limits the recognition of marriage to only opposite-sex couples.  Now that Section 3 of DOMA has been ruled unconstitutional by the U.S. Supreme Court, the federal government cannot exclude same-sex couples from federal laws and programs, which include immigration laws.

As of June 26, 2013, following United States v. Windsor, U.S. federal immigration law allows a United States Citizen or Permanent Resident to legally sponsor his or her non-citizen spouse for Permanent Resident Status on the basis of marriage. Permanent Residence allows non-citizens to live and work in the United States indefinitely. Thus, the foreign national in a same-sex marriage can now obtain a “Green Card” as long as his or her marriage was legal where it took place. In the U.S., same-sex marriage is legal in California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and the District of Columbia.

The U.S. Department of Homeland Security (DHS) released a statement immediately following the Supreme Court’s decision. In this statement, Janet Napolitano, Secretary of DHS, applauds the Court for ruling DOMA unconstitutional, calling DOMA “discriminatory” towards same-sex couples; “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

As this development is brand new, we anticipate questions yet to be answered. However, under current law, we are able to assist any bi-national same-sex married couple in pursuing and obtaining Lawful Permanent Residence for the foreign national spouse. We will be happy to take such cases and look forward to representing same-sex married couples in the future. In fact, U.S. Citizenship and Immigration Services (USCIS) has already granted Permanent Residence in a bi-national same-sex marriage case.

Please call our office to schedule a meeting with one of our attorneys who will be able to explain in more detail what your options may be and how our law office can assist you in the process.

For more information on the Supreme Court’s ruling in United States v. Windsor, read the Court’s opinion released June 26th, 2013: http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf.

Read the full statement by the Secretary of the Department of Homeland Security Janet Napolitano, released June 26th, 2013: http://www.dhs.gov/news/2013/06/26/statement-secretary-homeland-security-janet-napolitano-supreme-court-ruling-defense

Note: Foreign nationals seeking lawful status in the U.S. are subject to all immigration laws, and even with a lawfully recognized marriage, may be inadmissible or otherwise unable to obtain Permanent Residence in the U.S. on other grounds, such as certain criminal convictions or immigration violations. This is true of anyone seeking immigration benefits from the U.S. Government.

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