DOMA Unconstitutional Immigration Impact

By: Aleksandar Cuic

The US Supreme Court made a landmark ruling in the matter of United States v. Windsor, determining that a same gender couple lawfully married in a state that permits same gender marriage may claim the same federal estate tax exemption for surviving spouses as permitted for marriage between members of the opposite gender. In reaching this decision the US Supreme Court struck down Section 3 of the federal Defense of Marriage Act (DOMA). The Supreme Court ruling on Section 3 of DOMA unconstitutional has significant implications that extend to the US Immigration laws. Prior to the decision in Windsor persons in a lawful same gender marriage were not permitted to file a petition for their foreign national spouse. After Windsor Lawful Permanent Residents and US citizens in a lawful same gender marriage may now petition for their marital spouse under the same guidelines as heterosexual couples. The secretary of Homeland Security Janet Napolitano after the Windsor ruling issued the statement,
unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.  To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” 
The Citizenship and Immigration Service (CIS) has issued guidance that same gender couples where one spouse is a U.S. citizen or a lawful permanent resident in a same gender (sex) marriage to a foreign national may file an immigrant visa petition for the foreign national spouse. Eligibility to petition for the foreign national spouse and the foreign national’s eligibility to be granted lawful resident status will be determined according to the applicable immigration laws and not be denied solely as a result of the same gender (sex) of the marriage. This applies to couples in same gender (sex) relationships that are married in a state that recognizes same gender relations but living in a state that does not. CIS will look to the law of the place where the marriage took place (comity) in making a determination of validity for immigration purposes.

While neither the Secretary of Homeland Security nor CIS have commented on non immigrant visas or status, it is very likely that spouse in a same gender marriage will also be accorded the same rights and privileges as heterosexual couples receive in the non immigrant process. Fo

The Citizenship and Immigration Service (CIS) has issued guidance that same gender couples where one spouse is a U.S. citizen or a lawful permanent resident in a same gender (sex) marriage to a foreign national may file an immigrant visa petition for the foreign national spouse. Eligibility to petition for the foreign national spouse and the foreign national’s eligibility to be granted lawful resident status will be determined according to the applicable immigration laws and not be denied solely as a result of the same gender (sex) of the marriage. This applies to couples in same gender (sex) relationships that are married in a state that recognizes same gender relations but living in a state that does not. CIS will look to the law of the place where the marriage took place (comity) in making a determination of validity for immigration purposes.

While neither the Secretary of Homeland Security nor CIS have commented on non immigrant visas or status, it is very likely that spouse in a same gender marriage will also be accorded the same rights and privileges as heterosexual couples receive in the non immigrant process. For instance prior to Windsor a non immigrant person granted H-1B (specialty occupation visa) would not be permitted to obtain H-4 status for her or his same gender (sex) partner. After Windsor the same rational for granting permanent resident status to foreign nationals a lawful marriage should be applicable to non immigrant visa classifications. Some of the non immigrant classifications where this applies are E-1, E-2; F-1 & F-2; H-1 & H-4; J-2 & J-2; K-1; L-1 & L-2; M; O; P; Q; R; and TN& TD.

Same gender (sex) marriages are recognized in the United States in thirteen states, California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington as well as the District of Columbia and five Native American Tribes.
A same gender (sex) marriage may be performed either in a secular civil ceremony or in a religious ceremony but must be performed in a jurisdiction that permits same gender (sex) marriage to qualify for US immigration purposes. However, once married the couple is free to reside any place of their choice and still remain qualified under the Immigration and Nationality Act.

r instance prior to Windsor a non immigrant person granted H-1B (specialty occupation visa) would not be permitted to obtain H-4 status for her or his same gender (sex) partner. After Windsor the same rational for granting permanent resident status to foreign nationals a lawful marriage should be applicable to non immigrant visa classifications. Some of the non immigrant classifications where this applies are E-1, E-2; F-1 & F-2; H-1 & H-4; J-2 & J-2; K-1; L-1 & L-2; M; O; P; Q; R; and TN& TD.

Same gender (sex) marriages are recognized in the United States in thirteen states, California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New

“After … the decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.  To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” 

The Citizenship and Immigration Service (CIS) has issued guidance that same gender couples where one spouse is a U.S. citizen or a lawful permanent resident in a same gender (sex) marriage to a foreign national may file an immigrant visa petition for the foreign national spouse. Eligibility to petition for the foreign national spouse and the foreign national’s eligibility to be granted lawful resident status will be determined according to the applicable immigration laws and not be denied solely as a result of the same gender (sex) of the marriage. This applies to couples in same gender (sex) relationships that are married in a state that recognizes same gender relations but living in a state that does not. CIS will look to the law of the place where the marriage took place (comity) in making a determination of validity for immigration purposes.

While neither the Secretary of Homeland Security nor CIS have commented on non immigrant visas or status, it is very likely that spouse in a same gender marriage will also be accorded the same rights and privileges as heterosexual couples receive in the non immigrant process. For instance prior to Windsor a non immigrant person granted H-1B (specialty occupation visa) would not be permitted to obtain H-4 status for her or his same gender (sex) partner. After Windsor the same rational for granting permanent resident status to foreign nationals a lawful marriage should be applicable to non immigrant visa classifications. Some of the non immigrant classifications where this applies are E-1, E-2; F-1 & F-2; H-1 & H-4; J-2 & J-2; K-1; L-1 & L-2; M; O; P; Q; R; and TN& TD.

Same gender (sex) marriages are recognized in the United States in thirteen states, California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington as well as the District of Columbia and five Native American Tribes.
A same gender (sex) marriage may be performed either in a secular civil ceremony or in a religious ceremony but must be performed in a jurisdiction that permits same gender (sex) marriage to qualify for US immigration purposes. However, once married the couple is free to reside any place of their choice and still remain qualified under the Immigration and Nationality Act.

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