U.S. Supreme Court Decision Paves Way for Same-Sex Spousal Immigration


The so-called “Defense of Marriage Act,” or DOMA, was passed in 1996 by Congress and signed into law by President Bill Clinton, but as of today, the U.S. Supreme Court has ruled that Section Three of DOMA is unconstitutional. Section Three prevented the federal government from recognizing any marriages between gay or lesbian couples for the purpose of federal laws or programs, even if those couples were considered legally married by their home states.

Because of today’s ruling, there are literally thousands of binational same-sex couples currently residing in the U.S. who can now legally pursue spousal immigration visas to avoid deportment of one spouse. There are also thousands more living overseas for fear of U.S. deportment of the foreign spouse, and they too can now reside here legally with the help of a visa. Ultimately, all of the foreign spouses among these binational same-sex couples will also be able to pursue U.S. citizenship as well, thanks to the Supreme Court’s ruling.

Historically, these spouses have had few viable choices for maintaining their marriages, having had to either:

  • Seek an alternative visa remedy, such as a tourist, work or student visa, to allow the foreign-born spouse to remain in the U.S.;
  • Remain in the U.S. without legal protection and under fear of being deported; or
  • Leave the U.S. and move to a country that recognizes their unions.

In recent years, the Obama administration had issued new deportation guidelines to help binational same-sex couples to stay in the U.S., recommending that spousal relationships be considered in the deportation priority process, and allowing the spousal relationship to be considered as grounds for legal delay of deportation under various circumstances.

Many groups worked hard to advocate for the repeal of DOMA, including the American Immigration Lawyers Association, Lambda Legal, Freedom to Marry, the Human Rights Campaign, the DOMA Project, Immigration Equality and Marriage Equality USA.

Thanks to their advocacy, it is now possible for binational same-sex couples to live in the U.S. without fear of deportation, provided that the proper fiancé or spousal visas are procured legally.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ronald Shapiro | Attorney Advertising

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