Bean + Lloyd LLP
Call Today for an Initial Consultation
510-433-1900

Death of DOMA has Profound Implications for Immigrants

by Rubina Chuang

SCOTUS deals fatal blow to DOMA

Yesterday, June 26, 2013, the U.S. Supreme Court ruled in a 5-4 decision that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.

DOMA Section 3 stated that marriage for all purposes under federal law was defined as "only a legal union between one man and one woman as husband and wife." Under this section, the federal government did not recognize same-sex marriages as valid for the purposes of federal law, even if the marriage was valid under state law.

The Court held this section to be unconstitutional because it defined the meaning of "marriage" for all states, going beyond a "minor" limitation on state-sanctioned marriage-a clear intrusion of state sovereignty. The Court clarified that, now, if a state decides to recognize same-sex marriage, the federal government must recognize the marriage as a legitimate marriage for purposes of distributing federal benefits.

It is important to note that this decision does not guarantee the right to same-sex marriage in every state. The Court did not address DOMA's Section 2, which continues to give states the right to prohibit same-sex marriages within their state boundaries.

In a separate opinion, the U.S. Supreme Court declined to decide the issue posed by California's ban on same-sex marriage under Proposition 8, namely whether banning same-sex marriage is constitutional. Instead, the Court dismissed the case because the parties who brought the appeal did not have standing. For those of us living in the Golden State, this opinion has the same practical effect as if Proposition 8 was struck down. It is thus likely that same-sex marriages in California will resume very soon.

What This Means for Immigrants

Although many states still prohibit same-sex marriage, the death of DOMA means that the federal government will now recognize a same-sex marriage as a legitimate marriage, as long as it was legal within the state it was performed. Thus, with this decision, married same-sex couples may soon be able to receive the same immigration benefits as heterosexual couples. This change will impact immigration in many ways, including the following:

1. U.S. citizens in a same-sex relationship with a foreign national may now petition for a visa on behalf of his or her spouse,

2. Same-sex spouses may also be considered derivatives in visa applications,

3. When determining hardship, immigration judges and Department of Homeland Security officers may take into consideration a same-sex spouse's hardship in deciding whether to grant a visa or relief from deportation.

It is important to note that even if a same-sex couple lives in a state where same-sex marriage is prohibited, they can marry in a state that does allow same-sex marriage, and still qualify for federal immigration benefits.

While the decision is already helping to stop deportations in the immigration court context, prospective applicants should note that no formal changes have been implemented yet, and it would be wise to wait until they have before filing any affirmative applications with USCIS. We are hopeful that the changes will be implemented soon, as the Secretary of Homeland Security, Janet Napolitano, has already issued a statement to the press confirming that DHS is "working with our federal partners, including the Department of Justice, [to] implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."

If you think you may now be eligible for an immigration benefit, it is important to consult with an immigration attorney to understand how and when you can apply.

To stay updated, follow us on twitter @beanlloydllp

No Comments

Leave a comment
Comment Information

How Can We Help You?

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

Bean + Lloyd LLP

Bean + Lloyd LLP
110 Eleventh Street
Oakland, CA 94607

Phone: 510-433-1900
Fax: 510-433-1901
Map & Directions

facebook