For the first time in history, Gay and lesbian couples will be eligible to get green cards for their foreign national spouses as a result of a recent US Supreme Court ruling that will allow same-sex couples access to federal benefits. The Court declared in its opinion last Wednesday June 26, 2013, that section 3 of the Defense of Marriage Act (DOMA) is in violation of the Fifth Amendment and therefore unconstitutional. DOMA is a federal statute that forbids the US government from recognizing same-sex marriages for federal purposes, even when such marriages are recognized in same-sex couples’ home states.
The term “marriage” is not defined in the Immigration and Nationality Act (INA). However, according to US Department of State Foreign Affairs Manual at 9 FAM 40.1 N1, the validity of a marriage for immigration purposes is defined by section 3 of DOMA, a statute that forbids the federal government from recognizing same-sex marriage.
This landmark case decision will have significant impact on immigration because it will allow same-sex couples to adjust status to permanent residence based upon marriage just as opposite sex couples do. Immigration law allows for a US citizen or US permanent resident to file a permanent residence application for a green card with the USCIS on behalf of his or her spouse on the basis of their marriage. However, this eligibility has since been unavailable to same-sex couples on the basis that the DOMA statute forbids the federal government from recognizing gay marriage, and thus same-sex couples have been ineligible to adjust status.
The case is United States v. Windsor, 570 U.S. ___ (2013) Edith Windsor and Thea Spyder were married as a same-sex couple in Ontario, Canada in 2007. Ms. Spyder later died in 2009 leaving her estate to Windsor. Windsor tried to use the federal estate tax exemption to claim her refund as a surviving spouse, but was prohibited from doing so by section 3 of DOMA. Windsor then filed suit and prevailed in the US District Court, and the case was affirmed by the US Second Circuit.
The Supreme Court affirmed the case and held that Windsor was entitled to the estate tax refund. The majority opinion of the court stated that for the IRS to deny the exemption under the provisions of DOMA is discriminatory and violates the fourth amendment. The court held that it was a deprivation of liberty for the government to grant such benefit to opposite sex couples while denying the same benefit to same-sex couples. The majority opinion stated that the DOMA statute is invalid because there is no legitimate purpose and effect that can overcome the injury DOMA has caused to same-sex couples.
The court noted that under DOMA, same-sex married couples have since been burdened by the federal government in many aspects. DOMA prohibited same-sex couples from receiving health care benefits, denied special protections under the bankruptcy code, prohibited marriage based federal tax exemptions, prohibit them from being buried together in veterans’ cemeteries. The court also noted that DOMA discriminates against same-sex married couples by preventing them access to certain employer based health benefits, reduces benefits received as a result of the death of a spouse or parent, loss of certain Social Security benefits. The court said that DOMA also harms gay and lesbian married couples by denying them certain student federal financial aid eligibility
The Fifth Amendment guarantees the equal protection of the laws of all people within US jurisdiction. The court reasoned that since so many federal benefits are available to opposite-sex couples, yet those benefits are denied to same-sex couples for no legitimate reason, DOMA is therefore rendered unconstitutional as a violation of the Fifth Amendment’s Due Process Clause.
Now that section 3 has been struck down by the Supreme Court, there is no federal law in place that would prevent a same-sex couple from filing a family-based immigration petition based upon a marital relationship. Now with DOMA out of the way, same-sex couples are now eligible to obtain green cards based upon their marriages, in the same manner that opposite couples have been permitted to do so. Department of Homeland Security (DHS) Secretary Janet Napolitano stated on Wednesday that the department will immediately begin implementing the Supreme Court decision so that all married couples will be treated equally. Consequently, it seems there is no longer any real obstacle to block the pathway to citizenship for same-sex couples. We expect to see additional guidance from the DHS and USCIS in the near future.