Overview

The Supreme Court of the United States came out with a flurry of exciting decisions last week, including the decision on the Defense of Marriage Act (“DOMA”). Although it was technically a tax case, the Supreme Court’s finding that DOMA was unconstitutional has widespread implications, including in immigration.

Specifically, section 3 of DOMA limited federal recognition of marriage to opposite-sex marriages only. The immigration consequence of section 3 prevented same sex couples from sponsoring their partner for legal permanent residence (a “green card”). Prior to the Supreme Court ruling, there was much litigation and a stubborn policy by USCIS to refuse recognition of same sex marriages. One of the most recent cases is a class action by a lesbian couple from the Philippines, alleging a residency waiver was denied because of DOMA section 3. The implications also run to obtaining United States citizenship, or “naturalization,” given that a green card holder spouse could obtain citizenship after three years.

Although the DOMA ruling isn’t an affirmative statement, it at the very least gives USCIS one less leg to stand on in denying family-based green card petitions for the estimated 36,000 same-sex couples. And just days after the ruling, Secretary of Homeland Security Janet Napolitano stated that any legally valid marriage to a U.S. Citizen would be recognized. If the Comprehensive Immigration Reform bill passes, which looks more and more likely given the huge approval by the Senate, it would affirmatively allow for same-sex couples to petition for their significant others for immigration benefits.

At the AILA National Conference in San Francisco, USCIS Director and keynote speaker Alejandro Mayorkas also announced that USCIS will re-open all Immigrant Visa petitions for same sex couples that were denied since February 2011. If you have questions about how the DOMA ruling could affect your or someone else’s ability to obtain a green card to citizenship, contact our office to speak with an attorney about your case.