Windy City Media Group Frontpage News
Celebrating 30 Years of Gay Lesbian Bisexual and Trans News
home search facebook twitter join
Gay News Sponsor Windy City Times 2020-03-17
About WCMG Publications News  Entertainment Features Donate Bars & Clubs Calendar Advertisers OUT! Guide    Marriage



Relationships & the Law Today: Immigration rights in era of marriage equality
A recurring column by Angelo D. DiBartolomeo

facebook twitter google +1 reddit email

Prior to July 1, 2013, same-sex couples who had entered into valid marriages in states recognizing same-sex marriage could not benefit from the same rights and protections afforded to married heterosexual couples under federal law.

The Defense of Marriage Act ( "DOMA" ), enacted in 1996, defined for federal purposes a "marriage" as solely a legal union between a man and a woman. DOMA ensured that the federal government, including administrative agencies, could not recognize a same-sex marriage that was legally entered into in a place that recognized same-sex marriages. Specifically, this had drastic consequences for noncitizens in same-sex relationships with U.S. citizens because even if these couples entered into a valid same-sex marriage in a location that recognized their union, foreign nationals were still denied access to benefits under U.S. immigration law, including most notably, the right to obtain a family-based immigrant visa.

More than one-third of foreign nationals who gain residency status in the United States do so by marrying a U.S. citizen or permanent resident. A marriage will generally be recognized by U.S. Citizenship and Immigration Services ( "USCIS" ) so long as that marriage is valid in the location where the marriage was performed. There are however exceptions to this general rule, and most notably for this discussion is the exception that the federal government will not recognize a marriage, regardless of its validity elsewhere, that is contrary to federal law. As such, as long as DOMA remained in effect, USCIS could not recognize a same-sex marriage when granting immigration benefits even if the same-sex couple was married in a state that specifically recognized same-sex marriages.

Today, however, thanks to both the decision in U.S. v. Windsor and the more recent Supreme Court decision in Obergefell v. Hodges, same-sex couples that marry anywhere within the United States may now enjoy the same immigration benefits that are afforded to heterosexual couples. In U.S. v. Windsor, the Supreme Court ruled that DOMA's provision defining marriage as only a legal union between a man and a woman was unconstitutional. Accordingly, this meant that the U.S. federal government could no longer refuse to recognize same-sex marriages that were entered into in states that allowed them. This decision created a pathway for married same-sex couples to receive hundreds of federal benefits that they had been previously denied solely based on the same-sex nature of their marriage. This includes the ability to obtain a family-based immigrant visa ( a "green card" ) and non-immigrant dependent visas for same-sex spouses working in the U.S. temporarily, so long as the marriage was legal where performed.

One week after the decision in U.S. v. Windsor was rendered, on July 1, 2013, Secretary of Homeland Security Janet Napolitano directed USCIS to immediately review immigrant visa petitions that were filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. Therefore, as of July 1, 2013, foreign nationals seeking immigration benefits based upon a valid same-sex marriage to a U.S. citizen could no longer have their petitions denied outright based solely on the same-sex nature of their marriage.

In addition to USCIS beginning to review same-sex marriage petitions in the same manner as they review heterosexual marriage ones, USCIS also reopened previously filed petitions that had been denied. USCIS has reconsidered petitions that were denied solely as a result of the applicant's same-sex marriage, and all reopened petitions would be considered anew without any regard given to DOMA and its provisions.

The Supreme Court has also recently ruled in another landmark decision in Obergefell v. Hodges that it is unconstitutional for any state to ban same-sex marriage, thus, ensuring that same-sex couples can now get married in all 50 states. Although USCIS has not provide guidelines as the date of this publication, USCIS should now recognize the validity of any same-sex marriage that is performed anywhere within the United States.

Thanks to the recent decisions from the Supreme Court, same-sex couples are now able to enjoy the many benefits—both state and federal—that come with being legally married in the United States. A foreign national being able to obtain a marital visa is just one of the many hundreds of benefits now available to same-sex couples. If you are interested in learning more about the various state and federal benefits, including immigration benefits, now available to same-sex couples who are legally married, please feel free to contact any one of Clark Hill's attorneys.

Angelo D. DiBartolomeo is an Associate with the Litigation Practice Group in Clark Hill's Chicago office. His focus is on various areas of litigation, including commercial litigation, business litigation, and employment litigation. Contact him at 312-985-5549 or .

facebook twitter google +1 reddit email

Windy City Media Group does not approve or necessarily agree with the views posted below.
Please do not post letters to the editor here. Please also be civil in your dialogue.
If you need to be mean, just know that the longer you stay on this page, the more you help us.


Gay News

COVID-19, closed churches and LGBTQ Catholics 2020-03-29 - Is anyone anywhere around the globe thinking about anything other than COVID-19, the coronavirus that has paralyzed almost all human activity? I imagine ...

Gay News

OPEN LETTER Census 2020: The LGBTQ+ community counts 2020-03-27 - It's a new decade, and that means it's time to complete the Census. The Census is done every 10 years, and informs ...

Gay News

Chief judge weighs in on bail reviews during COVID-19 epidemic 2020-03-21 - The Circuit Court of Cook County, under the direction of Chief Judge Timothy C. Evans, has taken a series of actions since March ...

Gay News

THE AMAZON TRAIL Mick's potato fertilizer 2020-03-17 - When I asked for advice about growing potatoes, our friend Mary wrote, "Here is what Mick does: blood meal, green sand, or wood ...

Gay News

Stop comparing coronavirus to early HIV/AIDS. Just stop. 2020-03-17 - People ask me if our lives today feel like the early years of HIV/AIDS, and I want to scream. There is no comparison. ...

Gay News

Open letter about Coronavirus and the LGBTQ+ communities 2020-03-11 - New York, NY - Over 100 national and local organizations have signed on to an open letter to health and media outlining how ...

Gay News

VIEWS In 2020, being queer could be key to a courageous career 2020-02-08 - Remember, in The Wizard of Oz, how the Cowardly Lion—when he got to see the wizard—was like, "What? I already had courage? WTH?" ...

Gay News

OPINION 'Trans-formal' education 2020-02-05 - "The year started well, but substitute teachers were not told about Dave's name," my friend Pat told me. "My son was called a ...

Gay News

VIEWS Warren's America would center our voices 2020-01-28 - Days before I marched in my first Pride Parade in 2015, I waited anxiously for the Obergefell v. Hodges Supreme Court decision that ...

Gay News

VIEWS College for LGBTQ students 2020-01-22 - Finding yourself and becoming comfortable with your identity is something that people within the LGBTQ community struggle with every day. There is ...


Copyright © 2020 Windy City Media Group. All rights reserved.
Reprint by permission only. PDFs for back issues are downloadable from
our online archives. Single copies of back issues in print form are
available for $4 per issue, older than one month for $6 if available,
by check to the mailing address listed below.

Return postage must accompany all manuscripts, drawings, and
photographs submitted if they are to be returned, and no
responsibility may be assumed for unsolicited materials.
All rights to letters, art and photos sent to Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago
Gay and Lesbian News and Feature Publication) will be treated
as unconditionally assigned for publication purposes and as such,
subject to editing and comment. The opinions expressed by the
columnists, cartoonists, letter writers, and commentators are
their own and do not necessarily reflect the position of Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago Gay,
Lesbian, Bisexual and Transegender News and Feature Publication).

The appearance of a name, image or photo of a person or group in
Nightspots (Chicago GLBT Nightlife News) and Windy City Times
(a Chicago Gay, Lesbian, Bisexual and Transgender News and Feature
Publication) does not indicate the sexual orientation of such
individuals or groups. While we encourage readers to support the
advertisers who make this newspaper possible, Nightspots (Chicago
GLBT Nightlife News) and Windy City Times (a Chicago Gay, Lesbian
News and Feature Publication) cannot accept responsibility for
any advertising claims or promotions.







About WCMG Publications News  Entertainment Features Donate Bars & Clubs Calendar Advertisers OUT! Guide    Marriage

About WCMG      Contact Us      Online Front  Page      Windy City  Times      Nightspots      OUT! Guide     
Identity      BLACKlines      En La Vida      Archives      Subscriptions      Distribution      Windy City Queercast     
Queercast Archives      Advertising  Rates      Deadlines      Advanced Search     
Press  Releases      Event Photos      Join WCMG  Email List      Email Blast     
Upcoming Events      Todays Events      Ongoing Events      Post an Event      Bar Guide      Community Groups      In Memoriam      Outguide Categories      Outguide Advertisers      Search Outguide      Travel      Dining Out      Blogs      Spotlight  Video     
Classifieds      Real Estate      Place a  Classified     

Windy City Media Group publishes Windy City Times,
The Bi-Weekly Voice of the Gay, Lesbian, Bisexual and Trans Community.
5315 N. Clark St. #192, Chicago, IL 60640-2113 • PH (773) 871-7610 • FAX (773) 871-7609.