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Implementation of the Supreme Court Ruling on the Defense of Marriage Act

Jul 2, 2013 | adjustment of status, federal court, Green card, Immigration policy, new law, Supreme Court Litigation, USCIS

Following last week’s Supreme Court decision striking down the Defense of Marriage Act as unconstitutional, the Secretary of Department of Homeland Security, Janet Napolitano, issued this statement on Monday, July 1, 2013:

“After last week’s 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.”

According to the new procedures, USCIS will look to the law of the place where the marriage took place in determining its validity for immigration law.  This means if a couple was married in a U.S. state that recognizes same-sex marriage (for example, NY) , but lives in a state that does not recognize same-sex marriage, the couple’s petition for an immigration visa will still be considered. Thirteen states and Washington, DC have legalized same-sex marriage.

It is unclear how “civil unions” and “domestic partnerships” will be treated by the USCIS.  It is recommended that if a partner within the same-sex couple would like to seek an immigration benefit, the couple marry in a state that recognizes same-sex marriage to avoid any issues regarding whether a civil union or a domestic partnership arrangement will qualify for immigration benefits.

One same-sex couple in FL has already succeeded with USCIS on a marriage-based visa petition and green card!

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

Ruchi Thaker