Among the repercussions of a recent Supreme Court decision that overturned the Defense of Marriage Act (DOMA), which defined marriage as the union of a man and woman, are a number of changes in current U.S. immigration law. While much of the current discussion about immigration in the United States focuses on Comprehensive Immigration Reform (CIR), the fallout from the DOMA decision is resulting in actions by U.S. Citizenship and Immigration Services (USCIS) that have an immediate effect, without the need for formal congressional approval.
Green Cards Already Issued
At President Barack Obama’s direction, federal departments are already taking actions to comply with the Supreme Court decision and some green cards have already been issued to beneficiaries of applications based on same-sex marriages. Former Department of Homeland Secretary Janet Napolitano issued a press release on her department’s commitment to implement the decision. Specifically, USCIS, a subdivision of DHS, has been instructed to reopen and review same-sex family-based immigrant petitions and to adjudicate them on the same grounds as opposite-sex spouse petitions. USCIS has posted a Q&A page on its website.
Recently, on August 28, 2013, USCIS approved the petition of Bretz & Coven’s clients Carlos and Alan, a same-sex, married couple whose petition had been pending for approximately three years before the USCIS. As a result, Carlos will finally be able to attend a New York City green card interview so that he can obtain his lawful permanent residence. With over 28,000 immigrants with U.S. citizen partners affected by this decision, green card applications are expected to increase significantly.
DOMA and Immigration Reform
The Supreme Court decision has taken on added importance in light of the fact that the immigration legislation passed three months ago by the U.S. Senate did not have same-sex immigration provisions. In what some see as a painful compromise out of political expediency, the bill did nothing to challenge DOMA and provide equal treatment for same-sex couples. The issue may, however, be moot in light of the mandate emanating from the White House and executed by USCIS.
While couples legally wed in states that recognize same-sex marriage may now proceed with their immigration petitions, the new rules don’t apply to couples in other states.
However, even though a same-sex marital couple may live in a state that does not recognize their union, their marriage is legally valid for immigration purposes if it was performed or “celebrated” in a marriage equality state. The case of my abovementioned clients’ is an example. Alan and Carlos were lawfully married in Massachusetts, but filed their visa petition from New Jersey which has not yet become a marriage equality state.
In the case of family preference immigrant visas, those who previously qualified as “unmarried sons and daughters” of U.S. citizens due to non-recognition of their same-sex marriages would now fall into the category of “married sons and daughters” of U.S. citizens. This would subject them to a longer waiting period for an immigrant visa. A more unfortunate consequence is that those who previously qualified as “unmarried sons and daughters” of lawful permanent residents (LPR) due to non-recognition of their same-sex marriages would become ineligible for an immigrant visa because LPRs are not legally able to sponsor married sons and daughters.
Waivers and Forms of Relief Now Available
Waivers and forms of relief from removal requiring a qualifying relative are now available to legally married same-sex couples. A waiver of inadmissibility based on extreme hardship to an immigrant’s USC or LPR spouse is now possible for married same-sex couples. A same-sex spouse will now have access to forms of relief of removal based on marriage that include adjustment of status, cancellation of removal, waivers under sections 212 (h) and (i) of the Immigration and Nationality Act, and VAWA protection.
It is important to note the new rules don’t create any special rights or entitlements for same-sex marital couples. All the same stringent rules that apply to opposite-sex marriages equally apply to the applications and applicants of same-sex sex marriages.