Yesterday, June 26, 2013, the Supreme Court struck down a federal law defining marriage as a union between a man and a woman. They affirmed that there is no genuine reason for the federal government to discriminate against married couples based on their sexual orientation. In the 5-4 decision, the court overturned section 3 of the Defense of Marriage Act, known as DOMA, which bars same-sex couples from receiving federal benefits. The Justices noted in their decision, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.”
This landmark decision means that our immigration system must treat same sex families the same as heterosexual families. With this historical verdict, gay and lesbian U.S. citizens and lawful permanent residents are now capable of attaining immigration status for their same sex spouses.
This landmark decision recognizing same sex marriage will influence all areas of immigration law. Immigration law will now treat same sex families the same, and this applies to eligibility for nonimmigrant visas (H4, L2, etc.), immigrant visa (I-140 and I-130), and U.S. citizens or permanent residents sponsoring their same sex spouses. The impact even reaches deportation matters where an immigration judge may consider the hardship on a U.S. citizen or permanent resident for a spouse facing deportation.
Our leaders have already stepped forward and put forth instruction regarding the Supreme Court’s decision. President Obama issued an immediate directive to the Attorney General to “work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.” The Secretary of Homeland Security, Janet Napolitano also issued a statement confirming that DHS is “working with our federal partners, including the Department of Justice, to implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."
There is no doubt that this decision will raise new questions. For example, in cases where all couples are required to prove their marriage is bona fide, same sex couples may have less evidence to prove their marital relationship is legitimate. Some of the evidence frequently used to prove bona fide marriage such as wedding albums and employee benefit statements may not be available if the same sex couple felt compelled to conceal their sexual orientation to their family, friends or employer. Immigration Law Group will continue to work with the U.S. government to help our clients navigate these challenges.