Immigration Consequences of DOMA Being Struck Down
Author: US Immigration Attorney Alena Shautsova
On June 26, 2013 the Supreme Court of the United States issued an opinion in United States v. Windsor that caused rainbow flags to fly high all across the country. In Windsor, the Supreme Court held that Section 3 of the Defense of Marriage Act enacted by Congress violated the Fifth Amendment of the Constitution. In providing justification for the decision, Justice Kennedy discussed the limbo individuals and families of same-sex couples are placed in by having their marriages legally recognized in their home state and then not recognized at a federal level. Now, same-sex marriages that are legally recognized in the states will also be legally recognized at a federal level.
So what are the immigration consequences of this decision? Before, American citizens and legal permanent residents could not sponsor foreign-born spouses for green cards and visas. Now they can! The caveat is that the same-sex couples must have been married in a state or country that legally recognizes same-sex marriage. For immigration status, federal officials look at where the marriage took place, not the state where the couple resides. For other federal benefits, like Social Security, the state the couple resides rather than the state the marriage took place, if not the same state, may be determinative.
When same sex couples will be able to sponsor their spouses?
It would be fair to say that the couples can start the process now, as the US Secretary of Homeland Security confirmed that the Immigration benefits will be available for the same sex couples. To qualify for Federal Immigration benefits the couples have to get married in one of the states that recognizes same sex marriages: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, Washington DC. The couples who got married in these states will be able to use Immigration system equally even if after the marriage they move to state where the same sex marriages are not recognized.
In addition, the couples may get married in one of the countries that recognize same sex marriages: Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Uruguay, and even in some states in Mexico.
Finally, those who have foreign fiancé and are wishing to bring them to the United States, will be able to utilize K-1 petition, as long as they can demonstrate intent to get married in one of the states that allow same sex marriages, together with other usual K-1 requirements.
The federal immigration benefits for LGBT community members do not include just family petitions, but also waivers, qualifications for cancellation of removal and other relief from removal, and other relief.
Should you have questions regarding same sex marriages and Immigration r benefits for the same sex couples, call New York immigration lawyer as soon as possible 917-885-2261.