Same-Sex Couples Will Soon Get Federal Immigration Benefits

In a historic move, the United States Supreme Court on Wednesday struck down as unconstitutional the Defense of Marriage Act (“DOMA”), which was signed into law by President Clinton in 1996. DOMA defined “marriage” as only between a man and a woman. As such, DOMA denied to legally married same-sex couples the same federal benefits provided to heterosexual spouses. Under DOMA, Social Security, pension and bankruptcy benefits, along with family medical leave protections and other federal provisions, did not apply to gay and lesbian couples legally married in states that recognize such unions.

The Supreme Court was presented with the issue whether DOMA violated equal protection guarantees in the Fifth Amendment’s due process clause as applied to same-sex couples legally married under the laws of their states. The majority of the Court found that DOMA violated the constitution. The Supreme Court was divided 5-4 in its decision.

Now that DOMA is dead, the historic ruling will open doors for immigration for same-sex married couples. DOMA prohibited married same-sex couples from collecting federal marriage benefits, such as the ability to petition for his or her spouse to become a permanent resident. This means a United States citizen man or woman who is married to a same-sex partner, will now be able to petition for his or her spouse for adjustment of status (if in the United States), for consular processing (if the spouse lives abroad), or a fiancé(e) petition to bring the partner to the United States for the purpose of marriage in a marriage-equality state that recognizes same-sex marriages.

Department of Homeland Security Secretary Janet Napolitano praised the Supreme Court ruling. “This discriminatory law [DOMA] denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits,” Napolitano said in a statement. “Working with our federal partners, including the Department of Justice, we will implement [the Supreme Court’s] decision so that all married couples will be treated equally and fairly in the administration of our immigration laws,” she added.

Over the next few weeks, USCIS will be setting forth guidelines for the implementation of federal immigration benefits for same-sex couples. Indeed, this is a huge victory, decades in the making!

Stay tuned for more updates on the immigration implications of the Supreme Court’s decision!

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Ruchi Thaker

Ruchi Thaker is New York City-based immigration attorney with extensive experience and excellent reputation for effective legal representation in simple and difficult immigration cases. I have experience in areas of deportation defense (criminal and non-criminal), federal court litigation, representation on appeals and motions with the immigration courts and the Board of Immigration Appeals, family-based immigration, asylum, naturalization, and consular processing.