Defense of Marriage Act Struck Down: Same-Sex Couples Can Qualify for Immigration Benefits

The Supreme Court today struck down the federal law, Defense of Marriage Act or DOMA, passed in 1996 by former President Bill Clinton and Congress.

DOMA barred the federal government from recognizing same-sex marriage despite the fact that state laws may have allowed same-sex marriage.  A majority of the court (5-4) determined that the Federal law violated the 5th Amendment which protects groups against discrimination through the Equal Protection Clause. For more information on DOMA and the recent trends in the immigration context see my previous post.

This is big news for those with same-sex married couples who want to immigrate to the US. Prior to this ruling, immigration benefits could not be conferred on such couples because of DOMA. USCIS has stated that it would not honor same-sex marriage because of DOMA. USCIS confers the ability to petition or sponsor a married spouse so long as the law was valid in place where the marriage took place. However, DOMA was an obstacle to this normal rule and therefore USCIS refused to recognize same-sex married couples in the immigration context.

The Supreme Court ruling makes it clear that when a same-sex couple is legally married – either in the 12 current states in the US or abroad in those countries that allow same-sex marriage – so long as it is a legal marriage, the US federal government will have to confer marriage benefits to that couple such as tax and immigration benefits. This paves the way for USCIS to accept I-130 Petitions for same-sex married persons whose spouse is a legal resident or US citizen so the spouse can become a permanent resident. It will also allow same-sex spouses to qualify for other immigration benefits such as the I-601 waiver, cancellation of removal, and dependent non-immigrant visas such as the spouse of an H-1B worker, of an L-1 worker, TN worker or E-2 investor.

This is a huge victory for same-sex married couples who currently are stuck with having their spouses qualify independently for non-immigrant and immigrant visas in the US. USCIS has not yet announced how it will implement the new rule so stay tuned for details.

If you need more information about DOMA and how the Supreme Court ruling will impact same-sex couples please schedule a consultation with Catherine Brown Boulder immigration attorney for more information.

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