The DOMA Decision and its Effect on Immigration - Articles

All Content


Posted by: Christy Gibson on Jul 22, 2013

By Kate Tucker*

     In Windsor v. United States, the Supreme Court agreed with the Second Circuit Court of Appeals and held Section 3 of The Defense of Marriage Act (“DOMA”) was unconstitutional under the Equal Protection Clause of the Constitution.  DOMA is a federal law that defines marriage as the legal union of one man and one woman. Section 3 of DOMA denied federal benefits to same sex partners. Windsor involved a surviving same sex spouse, whose inheritance had been subject to federal taxation as if the couple were unmarried.

     Bound by federal law, the U.S. Citizenship and Immigration Service (“USCIS”) had previously denied petitions by individuals in bi-national, same-sex relationships sponsoring spouses for permanent residency or dependent status. Following the Supreme Court’s ruling, same sex spouses are now entitled to immigration benefits. The Secretary of the Department of Homeland Security (“DHS”), immediately issued a directive to the USCIS to begin reviewing immigrant petitions filed on behalf of same sex spouses in the same manner in which they review petitions filed on behalf of opposite sex spouses. However, there are still several unresolved issues that will require guidance.

     First, adjudication under immigration law involves several agencies within DHS (i.e. USCIS, Customs and Border Patrol and Immigration and Customs Enforcement), as well as consulates throughout the world under the Department of State. It will therefore take time to develop practical guidelines for adjudication of applications for immigration benefits by same sex couples.

     Further, the guidance issued by DHS specifically refers to the filing of family-based immigrant petitions filed on behalf of same sex spouses. There is no mention of employment-based immigrant petitions, making a same sex spouse eligible to apply for Adjustment of Status as a dependent. There is also no mention of non-immigrant petitions, making a same sex spouse eligible for a derivative status, such as H-4.

     Another unresolved issue involves the validity of the marriage. As of August 1, 2013, 13 U.S. states and the District of Columbia, as well as many countries throughout the world, recognize same sex marriage; and several other states recognize out-of-state marriages and/or civil unions. Under the Windsor ruling, as long as the same sex couple married in a jurisdiction that recognizes same sex marriage, the marriage is valid for purposes of application for federal benefits. The ruling does not cover civil unions or domestic partnerships. Of some concern though, is Secretary of DHS's statement that references the laws of the state in which the couple resides, suggesting that there may be some issue if the couple is living in a state that does not recognize same sex marriage (even if married in a state that does). Given the Windsor ruling, this is unlikely to be an issue; however it is a statement that merits some clarification.

     Until these issues are resolved, we may find that some same sex petitions are met with delays, confusion, lack of consistency, and perhaps rejections.

_________________________

*Kate Tucker is a partner at Kramer Rayson LLP in Knoxville, Tennessee. She earned her J.D. from William and Mary College of Law in 2001. She is admitted to the state bar of Tennessee and the U.S. District Court, Eastern District of TN. Her primary practice areas include business immigration and employment law.