Marriage Equality in Immigration Law

FINALLY! Marriage Equality in Immigration Law: Green card sponsorship through marriage for same-sex couples with the demise of DOMA

On June 26, 2013, the U.S. Supreme Court issued a landmark decision that struck down the Defense of Marriage Act (DOMA) and the discriminatory immigration laws that went with it. In ruling that the section of DOMA, which limited federal benefits to opposite-sex married couples, is unconstitutional, the Supreme Court effectively ended the practice of denying Americans the right to sponsor their foreign-born spouses.

Before this decision, a U.S. citizen or legal permanent resident was prohibited from sponsoring a same-sex foreign national spouse for a green card, unlike his or her heterosexual counterpart. As a result, even if a bi-national couple was married in a state that permits same-sex marriage, the foreign national partner could actually be deported if he or she was not in the U.S. with a proper non-immigrant visa. However, after the Supreme Court decision on Wednesday, Janet Napolitano, director of Department of Homeland Security, announced,  “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.”

Napolitano’s statement was acknowledged by USCIS Director Alejandro Mayorkas.  During the annual American Immigration Lawyers Association conference in San Francisco, California, he stated that the agency will move forward and grant green cards for same sex marriages. Mayorkas also said that USCIS has kept records of all the I-130 family petitions that were denied because the marriages were of same-sex partners. He implied that USCIS would reopen these cases on their own motion.

The positive ramifications of the DOMA decision were felt immediately by one same-sex binational couple in New York. In 2011, after same-sex marriage was legalized in New York, an American man married his Colombian partner. Ater the wedding, the American filed a green card application on his husband’s behalf, just as thousands of opposite-sex couples do every year. Unfortunately, the application was denied because the federal government, which controls immigration laws, did not recognize their union as a legal marriage. On June 26, 2013, at a deportation hearing that thretened to tear this couple apart, an intern for the law firm representing these men ran to the court to show the judge the decision that was just posted on the Supreme Court website. The judge immediately terminated the deportation proceedings, paving the way for this married couple to remain together, legally, in the United States.

Senator Patrick Leahy, D-VT, proclaimed, “I do not believe we should ask Americans to choose between the love of their life and love of their country…discriminating against a segment of Americans because of who they love is a travesty and it is ripping many American families apart.” We wholeheartedly agree.

As this subject is so important to many of our clients, we will monitor it closely and issue timely updates on our website.

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