On June 26, 2013, in a 5-4 decision, the U.S. Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA), a law that prohibited the federal government from recognizing marriages of same-sex couples for all purposes including immigration benefits, violated the equal protection clause of the Fifth Amendment. (U.S. v. Windsor, 6/26/13). In a separate 5-4 decision on the same day, the high court held that private parties did not have standing to defend California's Proposition 8, California's voter-approved ballot measure barring same-sex couples from state-sanctioned marriage, restoring the decision to allow same-sex couples to marry in California. (Hollingsworth v. Perry, 6/26/13).
After the decision was announced, President Obama issued an immediate directive to the Attorney General to work with other members of his Cabinet to review all relevant federal statutes to ensure this decision, including its implications for federal benefits and obligations, is implemented swiftly and smoothly. The Secretary of Homeland Security, Janet Napolitano, also issued a statement to the press confirming that DHS is working with federal partners, including the Department of Justice, to implement the decision so that all married couples will be treated equally and fairly in the administration of U.S. immigration laws.
Whether a marriage is valid impacts all areas of immigration law. For example, a lawful union would be required before the CEO of a multinational company could relocate to the U.S. with her partner, and a U.S. citizen or resident may only sponsor a spouse or have a stepchild relationship recognized where there is a valid marriage. Even with a potential deportation, an immigration judge is barred from looking at the hardship on a U.S. citizen or permanent resident partner for an individual facing deportation—unless there is a marital relationship. The Supreme Court's ruling in the DOMA case will guarantee all lawfully married couples equal rights regarding immigration benefits and protections. As an extra plus, recognition of same-sex bi-national couples will also make America more attractive to global talent.
In her blog post, Laura Lichter, Past President of the American Immigration Lawyers Association (AILA), indicated that same-sex couples in the immigration process will still face challenges under U.S. immigration laws. Only 12 states and Washington, D.C. (in addition to 15 countries) recognize same-sex marriage. Civil unions or domestic partnerships—so far—do not appear to be covered by the ruling. Traditionally, immigration authorities have recognized family relationships based on where the marriage was celebrated, rather than where the couple lives and files for immigration benefits. The continued application of that rule will ensure that a same-sex couple that legally married in Minnesota, for example, but moved to a state like Colorado (which has a state constitution ban on gay marriage), can still be recognized as spouses under federal immigration law despite the fact that Colorado state law would not recognize the marriage. Lichter noted, however, that same-sex bi-national couples will likely still face more and different hurdles than heterosexual couples in the immigration process, such as increased scrutiny as to the bona fides of a same-sex relationship.
It appears United States Citizenship and Immigration Services (USCIS) is ready to implement the Supreme Court's decision. In an exchange after his keynote speech at the AILA Annual Conference on June 27, 2013, USCIS Director Alejandro Mayorkas indicated that since February 2011, when the Administration opined on the unconstitutionality of DOMA, USCIS has kept a list of all I-130 immediate relative petitions filed by same-sex bi-national couples that were denied and is now prepared to act accordingly. Just two days after the historic Supreme Court ruling striking down DOMA, USCIS approved its first same-sex bi-national I-130 petition for Julian Marsh and Traian Popov of Fort Lauderdale, Florida: Julian's green card petition for his Bulgarian husband was approved at 3:45 p.m. EDT Friday, June 28, 2013.