Applying the Supreme Court's Decision on DOMA

After the Supreme Court's decision on same-sex marriage was released in late June, effectively invalidating Section 3 of the federal Defense of Marriage Act, questions have been arising as to the impact the decision will have on citizens with foreign same-sex spouses seeking to sponsor them for permanent residency. The Obama administration took no extra time in showing its enthusiasm for catering to couples in this situation who have been denied the right to fiancée and marriage visas for years. Practically speaking, two important implications have resulted from the Supreme Court's decision for immigration policy in the United States:

  1. U.S. citizens or permanent residents can sponsor foreign national same-sex spouses for family based immigration: Prior to the decision on DOMA, any petitions made by U.S. citizens for sponsorship of same-sex spouses were automatically denied by the United States Citizenship and Immigration Services by default. However, now that Section 3 of the Act has been overturned, same-sex couples will be considered and processed in the same way as heterosexual married couples. As a U.S. citizen or permanent resident, individuals seeking sponsorship for foreign national spouses will fill out Form-130 and submit it to the agency. The petition will be considered according to pertinent immigration law and will not be discriminated against based on the nature of the relationship.
  2. Married same-sex couples can petition for immigration visas regardless of their state of residence: Since DOMA did not make an impact on states that still do not recognize same-sex marriage, many couples who have been married in states that do but are residing in states that don't are wondering whether they qualify for the immigrant visa petition. The answer to their questions is in the positive. When reviewing a petition for an immigrant visa, the USCIS will view the legitimacy of the marriage based on the laws of the state where the marriage was established. That means that if a couple was married in a state that recognizes same-sex marriage, such as New York, but lives in a state that has yet to recognize the union, the USCIS will base its evaluation on New York's laws on same-sex marriage.

If you are a same-sex couple seeking answers to the process and procedure of obtaining an immigrant visa for permanent residency, contact the New Jersey immigration lawyers at The Law Offices of Lloyd E. Bennett, Esq. P.C. today.