The End of the Defense of Marriage Act and Immigration: Emerging Opportunities for Same-Sex Couples

“DOMA” is Dead



On June 26, 2013, the United States Supreme Court held Section 3 of the Defense of Marriage Act (“DOMA”) to be unconstitutional. Section 3 limited the federal definition of marriage to include opposite-sex couples only. Because immigration law is governed largely by federal law, DOMA therefore prevented married same-sex couples from obtaining green cards. Since the exclusion of same-sex couples from the federal definition of marriage is now unconstitutional, a U.S. citizen may file a green card petition for his or her same-sex, foreign-born spouse, and such a petition can no longer be denied solely because the couple is gay.

Same-Sex Couples Interested in Marriage-Based Green Cards Can Move Forward Confidently

While it will presumably take the United States Citizenship & Immigration Services some months to draft official guidance directing its employees to start adjudicating marriage-based green card petitions filed by same-sex couples, there is no reason in this author’s mind for such couples to wait any longer. The Secretary of Homeland Security, Janet Napolitano, already issued a statement confirming that the Department of Homeland Security is “working with our federal partners, including the Department of Justice, [to] implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.” And it has been reported that a New York City Immigration Judge, only hours after the Supreme Court’s DOMA decision was handed down, halted the removal proceedings of a married gay man.

Of course, same-sex couples moving though the green card process will face the same level of scrutiny faced by opposite-sex couples (if not even more scrutiny from some officers) and should be prepared to document their relationship with extensive evidence. But with such evidence in hand, same-sex, married couples seeking the benefits of permanent residency — the right to work, the right to travel, and most importantly, the right not to be removed from the United States — should move forward with confidence.

A historic occasion indeed!