Immigration Benefits Now Available to Same-Sex Spouses
June 26, 2013

The United States Supreme Court issued two landmark court decisions on June 26, 2013, that completely changes the treatment of same-sex married couples under the federal immigration laws.  The historic rulings make it clear that same-sex spouses must now be entitled to receive all of the same federal rights, benefits, and protections afforded to heterosexual spouses.


In United States v. Windsor, the Court ruled that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional as it violates the equal protection clause of the Fifth Amendment.  Under section 3 of DOMA, the federal laws defined marriage as “only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”  As such, even though some US states and foreign countries have been allowing lawful marriages between same-sex couples, same-sex marriages have not been legally recognized by the federal government due to DOMA.  In the immigration context, spouses in same-sex marriages have not been granted any immigration benefits based on the marriage, thereby preventing so many loving couples and families from peacefully planning a life together. 


Now that the Supreme Court has deemed section 3 of DOMA as unconstitutional, the federal government must now honor all lawful marriages and provide all benefits available under the federal laws.  For Californians, the second Supreme Court decision, Hollingsworth v. Perry, is just as historic as it paves the way for lawful marriages to resume in California.  The Court’s decision did not specifically rule that Proposition 8, which like DOMA defines marriage as between a man and woman only, is unconstitutional.  Rather, the Court ruled that the group that filed the appeal had no legal authority to do so as they did not experience a concrete or particularized harm.   In so ruling, the Court left in place a District Court judge’s decision that Prop. 8 is unconstitutional.  Consequently, California state officials have confirmed that they will proceed with issuing marriage licenses and conducting marriage ceremonies as soon as possible, which should be within the next few days. 


For immigration purposes, same-sex spouses may immediately move forward with seeking immigration benefits as soon as they have entered into a lawful marriage.  Currently, the following twelve states legally allow same-sex marriages:  Connecticut; Delaware; Iowa; Maine; Maryland; Massachusetts; Minnesota; New Hampshire; New York; Rhode Island; Vermont; and Washington.  As stated, California will very soon also allow lawful same-sex marriages.  Same-sex marriages are also lawful in the District of Columbia, as well as the countries of Argentina; Belgium; Brazil; Canada; Denmark; France; Iceland; Netherlands; Norway; Portugal; Spain; South Africa; and Sweden.  There are also parts of Mexico that have legalized gay marriage, and the countries of Uruguay and New Zealand have passed laws allowing gay marriages starting in August 2013.


The Secretary of Homeland Security Janet Napolitano has confirmed that the DHS will fully support and implement the court decisions.  In a press release issued hours after the Supreme Court decision, Secretary Napolitano stated, “I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional.  This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits….  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." 


Accordingly, spouses will now be eligible to file relative petitions, including work permit and advance parole travel document applications, for their spouses and step-children so that they can be together as a family.  Fiancée petitions will now also be available.  This also opens the doors for those in same-sex marriages to obtain dependent visas, such as when a spouse has been petitioned by another family member, like a parent or sibling, or temporary visas like H-1B work or F-1 student visas.  Like with all marriage-based petitions, spouses will be required to prove that the relationship is a legitimate and bona fide relationship.  Couples should therefore ensure that they are adequately documenting their relationship. 


The ramifications of these Supreme Court decisions are so widespread and revolutionary.  The battle for marriage equality has been long and difficult, but thankfully justice is now prevailing for those who have long deserved simply to be treated fairly and equally.  

For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists. Please also connect with us on Facebook and Twitter.  Aquino & Loew also handles family law and criminal matters.  Providing Personalized Service Nationwide & Abroad Since 1996.

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