Supreme Court Strikes Down DOMA
By Jennie Guilfoyle and Susan Schreiber
On June 26, 2013 the Supreme Court issued a decision in United States v. Windsor finding the Defense of Marriage Act (DOMA) unconstitutional. Under DOMA, marriage was defined to exclude same-sex spouses for purposes of qualifying for rights and benefits under federal law. For this reason, lawfully married same-sex couples were ineligible for immigration benefits, including filing petitions for same sex spouses. As a result of the Supreme Court decision, legally married same-sex spouses will no longer be barred from qualifying as spouses under immigration law. Currently thirteen states (CA, CT, DE, IA, MA, MD, ME, MN, NH, NY, RI, VT, WA) and the District of Columbia., as well as fifteen countries, allow same-sex marriage.
Impact on Immigration Benefits
This decision has consequences for every aspect of immigration law in which a marital relationship has significance. These include:
- Immediate Relative petitions (U.S. citizen petitioning for his or her spouse)
- F-2A petitions (LPR petitioning for his or her spouse)
- Derivative spouses in the F-3 (married sons and daughters of U.S. citizens) and F-4 (sisters and brothers of U.S. citizens 21 and over) preference categories
- Step-children (children of same-sex spouse will now be children for immigration purposes if they otherwise meet the definition of step-child in the INA)
- K visa (petition for fiancé(e) of a U.S. citizen)
- Affidavit of support (same-sex spouses may now be considered "household members" for purposes of the affidavit of support)
- VAWA Self-petitions for abused spouses of U.S. citizens and LPRs
- Qualifying relatives for waivers (many inadmissibility waivers require a showing of "extreme hardship" to a U.S. citizen or LPR spouse, child, or parent)
- Asylee and refugee relative petitions (petitions for spouses of asylees and refugees to obtain derivative asylee or refugee status)
- Derivative spouses for U status (for victims of certain crimes)
- Derivative spouses for T status (for victims of human trafficking)
Relief from Removal
- Qualifying relatives for cancellation of removal
- Derivative spouses on employment-based petitions in both the immigrant and non-immigrant categories
In a statement issued after the ruling, Secretary of Homeland Security Janet Napolitano said that DHS will work with federal partners, including the Department of Justice, to "implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."
Since the ruling, CIS has issued FAQs regarding implementation of the Supreme Court decision. CIS is now adjudicating same-sex marriage I-130 petitions and has already approved some petitions as well as applications for adjustment of status.