Wolfsdorf Rosenthal LLP

Supreme Court’s DOMA Ruling Opens Door to Immigration Benefits for Same-Sex Spouses


About 30,000 same-sex binational couples may now be eligible for immigration benefits, such as permanent residence based on marriage, thanks to the Supreme Court’s decision on June 26, 2013, in United States v. Windsor, which struck down the 1996 Defense of Marriage Act (DOMA) as unconstitutional. That law had prohibited the federal government from recognizing same-sex marriages, regardless of whether they were legally valid in certain states or in other countries, and from conferring federal benefits on same-sex spouses that are enjoyed by heterosexual spouses.

Janet Napolitano, Secretary of Homeland Security, said she applauded the decision. “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws,” she said. U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas said that USCIS has a list of marriage-based green card petitions that were filed since February 2011 by same-sex binational couples but were denied. He hinted that the cases might be reopened once implementing instructions issue.

The Supreme Court’s ruling doesn’t apply to same-sex couples in states that don’t recognize gay marriage, only to the 13 states that do. There is disagreement among legal observers about whether a gay couple who gets married in one state and moves to another state that doesn’t recognize the marriage will still be entitled to federal benefits.

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