The DOMA Ruling and its Effect on Immigration Law

by keith on July 1, 2013

Supreme Court’s DOMA Ruling

Wednesday, June 26, 2013, the Supreme Court struck down the Defense of Marriage Act (DOMA) as unconstitutional in its landmark decision in United States v. Windsor. For those who are unfamiliar with DOMA, this discriminatory law denied federal benefits, including immigration benefits, to legally married same-sex couples.

Pursuant to the recent Supreme Court ruling, Janet Napolitano, Secretary of Homeland Security, confirmed that the Department of Homeland Security will implement the decision “so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

Under current immigration law, a United States citizen and their foreign national spouse can petition for a green card for the foreign national spouse. If this petition is approved the foreign national spouse receives a “conditional green card” which after two years the couple can file a joint petition to remove the conditions. After a total of three years, the green card holder can then apply for citizenship.

This process however involves proving that the marriage is a valid one. This is usually done by providing evidence showing that the couple lives together, share finances, hold themselves out to be a couple, and even raise children together. Immigration law requires that the marriage be a bona fide marriage and that it looks to the place where the marriage was solemnized to determine validity. Thus, for same-sex couples, they will have to get married either in a state or foreign country that legally recognizes same-sex marriage.

The immigration implications for same-sex couples will also apply to the finance visa (K-visa) and also derivative status for children of the foreign spouse as “step-children”.

36,000 couples could be affected by the Supreme Court’s DOMA Ruling

According to the immigration advocacy group, Immigration Equality, there are an estimated 36,000 couples who could be affected by the Supreme Court’s ruling. Many same-sex couples have been either forced into exile or separated from their spouse because the foreign national spouse has been unable to get a green card to live and work in the United States. Finally, these couples can be reunited and start to live their lives together as a family in the United States

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