New Jersey Naturalization
Lawyer

In a groundbreaking June 2013 decision, the U.S. Supreme Court struck down a federal statutory section that defined "marriage" as a legal union between one man and one woman, and "spouse" as a husband or wife of the opposite gender for purposes of hundreds and hundreds of federal laws and regulations dealing with marital status.

DOMA section unconstitutional

In U.S. v. Windsor, the Supreme Court held that section 3 of the federal Defense of Marriage Act, known as DOMA, was unconstitutional because it deprived lawfully married same-sex couples of equal protection of the laws. The court wrote that if a state legalizes same-sex marriage, thereby seeking to "protect in personhood and dignity" those of its citizens who enter into such unions, a federal law meant to "disparage and to injure" those same people is invalid under the U.S. Constitution.

Broad impact

While Windsor concerns the denial of a marital federal estate tax law benefit to the surviving spouse of a lesbian married couple from New York, the restrictive federal definition of marriage applied to all areas of federal law, including immigration law. So with the demise of section 3, same-sex couples married in states that have legalized the institution are eligible for beneficial (and sometimes otherwise) provisions of a vast array of federal laws that concern married spouses.

Potential immigration law benefits

Many U.S. immigration law benefits are available because of marital relationships and the federal policy to unify families. U.S. Citizenship and Immigration Services, known as USCIS, the federal agency that administers immigration and naturalization laws, added information to its website about how the new rights will be implemented.

Secretary of Homeland Security Janet Napolitano says that pursuant to President Barack Obama's directive that federal agencies implement the decision "swiftly and smoothly," she was ordering that visa petitions filed for same-sex spouses be handled in the same way as other petitions. According to the USCIS website, previously filed petitions and applications that were denied because of DOMA section 3 will be reopened.

Impacted immigration issues include:

  • Citizens and lawful permanent residents or LPRs will be able to sponsor their same-sex spouses for family-based immigrant visas, as well as their same-sex spouses' children as the citizens' or LPRs' stepchildren.
  • Legal protections for abused spouses and children of citizens and LPRs will extend to the families of same-sex married couples who have experienced domestic violence.
  • Same-sex fiances and fiancees of citizens can apply for K visas that would allow them to enter the country before their lawful weddings.
  • Same-sex spouses will be eligible for naturalization after a shorter period of residence in the U.S.
  • And more.

Unfortunately, the change in the law only applies to gay and lesbian couples who have been able to marry in a state or country where such marriage is legal. State-sanctioned civil unions or domestic partnerships will not qualify as marriages under federal law even if marriage is not an option in the states where these other types of unions are available.

Legal counsel important

For same-sex married couples and their families, it may be crucial to talk to an experienced immigration attorney familiar with the impact of the Windsor decision on the immigration and naturalization rights of same-gender spouses and their relatives. Immigration law is highly complex and it can be very beneficial to retain a skilled lawyer to assist with petitions, applications, reviews, appeals and negotiations.