Immigration Benefits in the aftermath of DOMA

The U.S. Supreme Court’s repeal of a major section of the Defense of Marriage Act in the Windsor case is seriously effecting the immigration process for same-sex couples.

The U.S. Supreme Court’s landmark decision, on 26 June 2013, to repeal a major section of the Defense of Marriage Act (DOMA) in the Windsor case has undoubtedly begun to have a revolutionary effect on the immigration process for same-sex couples.DOMA, enacted and signed into law by President Bill Clinton on 21 September 1996, was a U.S. federal law that restricted federal marriage benefits and codified inter-state marriages as strictly opposite-sex marriages in the United States. The impact of DOMA had a long lasting disparaging effect on the rights of same-sex married couples, as Section 3 of the bill categorized the non-recognition of same-sex marriages for all federal purposes, including insurance, Social Security benefits, tax, and immigration benefits. In the aftermath of this landmark case, U.S. immigration agencies have been quick to implement new policies to uphold the rights of same-sex couples and ensure that they are receiving benefits identical to those of opposite sex couples.Under DOMA’s U.S. immigration landscape, the only dependent nonimmigrant visa option available to same-sex married couples was the B-2 visitor visa or cohabitating visa. In order to qualify for the B-2 visa, one of the foreign nationals in the same-sex couple had to have held legal immigration status in the United States. Historically, the only other viable option for a dependent member of a same-sex couple relied solely upon his or her ability to qualify for a nonimmigrant employment-based visa based on individual merit. Similarly there are a number of immigrant visa benefits which are based upon the existence of a valid marriage, which were denied to same sex married couples pre-Windsor, such as the ability for a U.S. spouse to file an I-130 family-based petition and I-485 adjustment of status to permanent residency application on behalf of a foreign spouse.With the legal recognition of same-sex marriages in only thirteen of fifty U.S. States, same-sex couples were initially concerned about how the law would be interpreted post-Windsor. Specifically the concern was whether a couple would have to live in a “marriage equality state” in order to be eligible to apply for immigration benefits. To date, clarification has been received from the U.S. Citizenship and Immigration Service (USCIS) and the Department of State (DOS), which have confirmed that the “place of celebration” rule – that states that the validity of a marriage is determined by the law of the state where the marriage was celebrated - will apply.  In particular USCIS has confirmed that if a same-sex couple is married in a state where same-sex marriage is legal, but the visa petition is filed in a state where same-sex marriage is not legal, USCIS will still accept the petition as valid. Similarly, the DOS Guidance for Consular Posts processing U.S. visa applications explicitly states that a same-sex marriage is valid for U.S. immigration purposes, if celebrated in a jurisdiction where it was legally recognized, even if the visa applicant is applying in country in which same-sex marriage is illegal. The U.S. Customs and Border Patrol have yet to issue guidance on the matter, which is troubling for Canadians who are not required to have a visa for temporary entry to the U.S. and instead apply for admission at the border. For Canadian same-sex spouses seeking admission as a dependent, it may be advisable to call the port of entry in advance to confer with the officer on duty. Gibney continues to monitor developments in this post-Windsor environment.This immigration article is provided as general information by Gibney, Anthony & Flaherty, LLP (www.gibney.com) and does not constitute and should not be construed as, legal advice. If you have any questions please contact Aisling Ryan (aryan@gibney.com).

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