Immigration Benefits for Same-Sex Couples after DOMA’s Demise

Admin Santos Immigration/ April 22, 2013/ Blog/ 0 comments

In the landmark case, United States v. Windsor (2013), the Supreme Court struck down Section 3 of the Defense of Marriage Act (1996), or DOMA – which had defined marriage as between a man and a woman only.  Under this provision of DOMA, same-sex couples were denied access to hundreds of federal programs and benefits available to heterosexual couples, including immigration benefits.  With almost twenty-five thousand same-sex binational couples living in the U.S., many of these citizens were not able to petition for their foreign-born spouse to obtain a green card, or even prevent their spouse from being deported.  This discriminatory law also prevented children of foreign-born spouses from being granted a green card through their gay or lesbian step-parent.  In June, however, the Supreme Court struck down this segment of DOMA as violating the Due Process Clause of the Fifth Amendment, finally granting same-sex couples equal access to numerous government benefits.

One of the most important impacts of this Supreme Court decision is that U.S. Customs and Immigration Service (USCIS), a federal agency tasked with overseeing immigration applications and benefits, will now recognize same-sex marriages performed in states and countries where same-sex marriage is legally recognized.  Currently, this includes Washington, D.C., these fourteen states, and internationally in any of the fifteen countries, or regions in other countries, with full marriage equality.  Even if a same-sex couple is living in a state that doesn’t legally recognize their marriage, as long as they were married in a state or country that does, the U.S. citizen spouse will be eligible to petition for their foreign spouse, if they meet all other immigration requirements.

Similarly, U.S. consulates abroad will also recognize any same-sex marriages performed in a country, or a region of a country with full marriage equality.  Even U.S. consulates located in countries that do not recognize gay marriage will accept immigrant visa applications submitted by eligible same-sex binational couples.

Previously denied applications by same-sex couples will automatically be reviewed for improper rejection as well if they would have otherwise been accepted after Section 3 was overturned.  For example, Sean and Steven Brooks, a gay couple living in New York City were upset when Steven, Sean’s husband from Colombia, was denied a green card and instead was placed in removal proceedings, facing an imminent threat of being deported.  After the Supreme Court decision in Windsor. he was informed that the court would remove the deportation threat and let Sean sponsor Steven for residency.  This would let both of them live together and raise a family in America and afford Steven the opportunity to later become a citizen.

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