The Supreme Court’s ruling on June 26, 2013 in United States v. Windsor will provide greater access to federal immigration benefits for same-sex couples. In its 5-4 decision the court ruled that Section 3 of the 1996 federal Defense of Marriage Act (DOMA), that defined the terms “marriage” and “spouse” as excluding same-sex couples, was unconstitutional because it denied same-sex couples equal protection under the Fifth Amendment.
The court’s ruling will have a major impact in the immigration context because it essentially recognizes all same-sex marriages that are valid in the state or country where performed. Same-sex marriages are currently recognized in 15 countries and legal in 12 states and the District of Columbia. Now legally married same-sex couples will receive federal benefits including immigration benefits that are equal to those received in heterosexual marriages.
The two federal agencies that enforce immigration laws, the Department of Homeland Security and the Department of State, must now recognize legal same-sex marriages for immigration purposes. As a result, U.S. citizen or permanent resident spouses will be able to seek permanent residence for their foreign spouses, if their same-sex union is recognized in their jurisdiction. Married same-sex couples will likewise be able to immigrate to the U.S. based on employment and family relationships. It is also possible that nonimmigrants like temporary workers and students may be allowed to have their same-sex spouse accompany them during their temporary stay in the U.S.
An important caveat is that some states and countries where same-sex marriage is legal require one or both of the spouses to be residents of the jurisdiction where they were married. Consequently, non-resident same-sex couples may not necessarily receive the same benefits as same-sex couples who reside in the jurisdiction where their marriage took place. Same-sex couples should receive counsel from experienced immigration attorneys to understand how this ruling applies to the specific facts of their immigration situation.
Be assured that the staff of Rose Immigration Law Firm will keep you posted as we await additional guidance and agency action on how this ruling will impact immigration laws.