The United States Supreme Court recently ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. This ruling allows for the provision of federal benefits, including immigration benefits, as well as social security, inheritance and veteran benefits, to legally married same-sex couples. These benefits were not previously available.
In the immigration context, as a result of the Supreme Court’s ruling, the United States Citizenship and Immigration Services (USCIS) has been directed to review visa petitions for same-sex marriages in the same way that it reviews petitions for opposite-sex marriages. This means that a U.S. citizen or lawful permanent resident can now file a family-based visa petition for his or her same-sex spouse, as long as the couple was legally married in a state that recognized same-sex marriages at the time. It does not matter if the couple is currently living in a state that does not recognize same-sex marriage. The same should be true for a same-sex couple who legally married in another country that recognizes same-sex marriages.
Furthermore, U.S. citizen step-children over the age of twenty-one can file family-based visa petitions for their step-parent if their parent and step-parent had a legal same-sex marriage before the step-child’s eighteenth birthday. This situation might arise if neither the parent nor the step-parent is a lawful permanent resident or U.S. citizen, but the step-child is a U.S. citizen because he or she was born in the United States or was naturalized. Similarly, a U.S. citizen or lawful permanent resident step-parent can file a family-based visa petition for his or her step-children as long as the legal same-sex marriage took place before the step-child’s eighteenth birthday.
When filing a family-based visa petition based on a same-sex marriage, it is important to have ample documentation of the relationship, just like for a family-based visa petition based on an opposite-sex marriage. The marriage certificate is essential. Examples of other evidence that the couple is involved in a real relationship include apartment leases, mortgages, deeds, utility bills, and telephone bills listing both spouses’ names. Other evidence of the relationship may include joint bank accounts and credit cards, estate planning documents, health care documents or powers of attorney naming or appointing the spouse to receive a benefit or act in a certain capacity, and documentation of traveling together (e.g., plane tickets and hotel reservations for the couple).
Not all evidence typically used in a visa petition for an opposite-sex couple will be available to same-sex couples at this time, but may be acquired going forward. For example, prior to the Supreme Court ruling, couples in same-sex marriages could not file joint tax returns, but they should consider doing so in the future because joint tax returns are good evidence of the relationship.
The DOMA ruling should also have ramifications in other areas of immigration law, outside of family-based visa petitions. For example, spouses may follow-to-join in approved asylum cases or in other immigration cases where a spouse or minor child exists, but is not named on the petition, as long as there was a legal marriage. An example of this would be an employment-based case. Another example is that individuals (male or female) may now seek legal status under the Violence Against Women Act (VAWA) without relying on their U.S. citizen or lawful permanent resident spouse to petition on their behalf if there was a legal same-sex marriage.
This decision by the Supreme Court has made it possible for someone in a same-sex marriage to obtain immigration benefits. If you or someone you know can benefit from the Supreme Court’s ruling, please consult one of our immigration attorneys who can be reached at 860-242-2221. If you or someone you know can benefit from another aspect of the Supreme Court’s ruling, please consult one of our other attorneys, who can also be reached at 860-242-2221.
For more information, please contact Attorney Jason Y. Gans.