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Relationships & the Law Today: Immigration rights in era of marriage equality
A recurring column by Angelo D. DiBartolomeo
2015-07-22

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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 adibartolomeo@clarkhill.com .


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