Post-DOMA, Same-Sex Couples Gain Immigration Rights

The Supreme Court has ruled that The Defense of Marriage Act (DOMA), the law barring the federal government from recognizing same-sex marriages legalized by the states, is unconstitutional.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in person hood and dignity,”

Justice Anthony Kennedy wrote in the majority opinion.

“By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

This means that same-sex couples should now be treated just like opposite-sex couples in the immigration system. Citizens can now sponsor a foreign-born same-sex spouse for permanent residence (a green card) as long as they wed legally in a state or country that allows it and have a bona fide marriage.

In a statement on the DOMA decision Wednesday, Homeland Security Secretary Janet Napolitano said,

“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.”

Rachel Tiven, executive director of Immigration Equality, says, “When the immigration system is evaluating a green card application, they ask, ‘Was your marriage valid in the place of the celebration, and is your marriage bona fide?’ It doesn’t matter if the couple got married abroad, as long as the marriage was legally recognized in that country. That benefit now applies to bi-national same-sex couples.”

Think Progress’ Esther Yu-Hsi Lee noted “The Supreme Court ruling comes as a future goal post to look forward to now that federal laws has ended the discrimination against their love,” “It also will finally allow the federal government to treat all LGBT families equally by allowing them access to federal benefits and protections.”

Can a US citizen marry his or her same-sex partner and apply for naturalization (green card)?

Yes. Same-sex couples can, as long as one spouse is a U.S. citizen, marry in a state that allows same-sex marriage and then petition for the naturalization of the non-citizen spouse.

Can I petition for my same-sex partner if we don’t live in a state that recognizes gay marriage?

Absolutely. This is no different from a straight couple from Florida running off to Las Vegas to get married. Once two people marry in a state that recognizes their marriage, the federal government will also recognize their marriage. For immigration purposes, it doesn’t matter that your home state does not recognize same-sex marriages. Just like the straight couple who married in Vegas, you will be free to move anywhere within the US, and the federal government will recognize your marriage license.

Is there any impact on our marriage based on the fact that we live in a state that does not recognize same-sex marriage?

Yes, but not for the purposes of immigration. The federal government will recognize your marriage, but for now the state may not. This means that while you will be able to apply for federal benefits such as immigration, tax benefits, and military spousal benefits, you may not be afforded state-offered benefits.

Immigration Attorney Proudly Serving in the United States

Brandt Immigration handles immigration and citizenship issues on a daily basis and if you are part of a same-sex relationship facing immigration issues, we encourage you to contact Brandt Immigration today.