Immigration Impact of Supreme Court DOMA Ruling

Landmark Supreme Court Ruling Opens Pathway to Permanence for Thousands of Couples in the United States

June 26, 2013

Today, the United States Supreme Court handed down an historic decision that will significantly impact the nearly 40,000 binational gay and lesbian couples currently living in the United States, creating an opportunity for permanent residence that was previously offered only to heterosexual couples.

In United States v. Windsor, the Court ruled that a provision in the Defense of Marriage Act (DOMA) prohibiting the federal government from conferring benefits to married same-sex couples is unconstitutional. Under DOMA, same-sex couples have been denied access to retirement, survivor and other benefits enjoyed by heterosexual couples. Significantly, DOMA also prevented lawfully married GLBT couples from obtaining lawful permanent residence (“green cards”) through marriage.

As immigration law is under federal jurisdiction, DOMA prevented American citizens in same-sex marriages from receiving immigration benefits, including the right to assist their partners in applying for lawful permanent residence. There are an estimated 28,500 binational same-sex couples in which one partner is a U.S. citizen and the other is not, and nearly 11,500 same-sex couples in which neither partner is a U.S. citizen. With DOMA overturned, these couples will be treated the same under immigration law as different-sex immigrant families. In other words, American citizens and lawful permanent residents can now submit petitions for their same-sex spouses, and these will no longer be denied solely on those grounds.

According to the advocacy group Immigration Equality, which has been fighting to end DOMA for its entire existence, GLBT couples do not have to live in a marriage equality state to apply for a green card. While some federal benefits may only be available to couples who wed in a state that recognizes same-sex marriage, this is not the case for immigration benefits. As they are strictly federal, the only requirement is that the couple entered into a marriage recognized by the state or county in which it was celebrated.

The Department of Homeland Security has not yet made an official statement about how it will evaluate pending and future green card bids from gay and lesbian couples, or when it will be able to begin processing the applications. Most experts believe that the government will immediately accept applications from married couples and begin moving forward with applications already filed.. In fact, USCIS has announced that it is going to review all alien relative petitions denied due to same sex marriages.

Such a significant legal change can bring with it questions and uncertainty in the weeks that follow, especially in a field as complex and rapidly-evolving as immigration. For instance, it is currently unclear as to whether a civil union or domestic partnership will be basis for a permanent residence application, or when same-sex couples effectively exiled for their inability to file for the alien partner will be able to return home.

As the Supreme Court’s ruling trickles down through various enforcement agencies and solidifies into everyday law, the May Law Group will be diligently researching every nuance of the process in order to provide our clients with the same impeccable care we have consistently provided for over a decade. We are currently ready to begin filing applications for our married same sex clients. Please contact Attorney Valerie May at 412-291-4400 for additional information.