Wolfsdorf Rosenthal LLP

DHS Issues FAQ on Supreme Court’s DOMA Ruling


The Department of Homeland Security issued a FAQ on July 1, 2013, in response to the Supreme Court’s decision on June 26, 2013, 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.

The FAQ notes that Secretary of Homeland Security Janet Napolitano said she has “directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” The FAQ provides the following questions and answers:

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?

A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?

A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

About 30,000 same-sex binational couples include spouses who may now be eligible for immigration benefits. The Supreme Court’s ruling applies only to same-sex couples in the 13 states that recognize gay marriage, not to the other states that don’t. Legal observers disagree 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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