The End of DOMA, Section 3: What does this mean for U.S. Immigration?

On June 26th the U.S. Supreme Court announced its ground-breaking decision in United States v. Windsor, declaring unconstitutional Section 3 of the Defense of Marriage Act (DOMA) and opening the door for over 1,000 federal benefits to be enjoyed by lawfully married same-sex couples.

Windsor will have monumental implications for U.S. immigration policy.

Historically, U.S. immigration law has failed to keep pace with other developed nations, such as Canada and the UK, with respect to its treatment of same-gender spouses. This has led to harsh results, including family separation and the loss to the U.S. labor market of countless talented individuals. It's estimated that there are approximately 36,000 same-sex binational couples living in the U.S. and thousands more who are separated or living abroad.

In its written opinion the Court noted that, in recognizing same-sex marriage, thirteen (13) jurisdictions within the U.S.:

"decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons."

It further noted that, in its restrictive definition of marriage as being limited to the union of a man and woman, DOMA:

" …undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition [placing] same-sex couples in an unstable position of being in a second-tier marriage.. . . And it humiliates tens of thousands of children now being raised by same-sex couples."

In a word, Windsor is expected to transform U.S. immigration, soon making it possible for same-sex married couples to enjoy equal immigration benefits. The likely outcomes include:

• The same-gender spouses of U.S. citizens to apply for U.S. permanent residence (the "green card") in the same fashion as opposite-gender couples.
• The same-gender spouses of green-card sponsored employees to obtain permanent residence in the U.S. as members of the immediate family.
• Married same-sex spouses of non-immigrant visa holders in H-1B, L-1, TN, E-1, E-2, O-1, F-1, J-1, and other visa categories to enter the U.S. in "dependent" status, assuring the same-gender spouse the ability to remain in the U.S. and accompany his/her spouse for the duration of the stay. In many cases it will permit the dependent to attend school in the U.S., and in certain categories - - such as the E, L, and J - - will permit the same-gender spouse to obtain U.S. employment authorization.
• Committed binational couples to apply for the K-1 (Fiancé/Fiancée) visa, enabling the foreign national to enter the U.S. for the purpose of getting married to his/her U.S. citizen partner.

The benefits emanating from the Windsor ruling will apply to: (1) couples married in a U.S. state recognizing same-sex marriage, and (2) couples married in one of the more than 10 countries outside the U.S. now recognizing same-sex marriage.

When is this effective?

Because Windsor is based on a statute being declared unconstitutional, it was effective immediately as of the publication of the decision. However, it may take the relevant agencies- - namely U.S. Citizenship and Immigration Services and the U.S. Department of State- - some time to implement protocols to meet the demands of the increased number of filings.

Does a civil union or a domestic partnership count as a marriage for immigration purposes?

The answer is not entirely clear as of this writing. However, we expect to receive guidance soon.

What if my spouse and I have already filed a petition with USCIS and it was denied?

In his keynote address at the American Immigration Lawyers Association (AILA) annual meeting earlier today, USCIS Director Alejandro Mayorkas stated that all previously denied same-sex family petitions seeking lawful permanent residence have been logged. This statement suggests that the denied cases will likely be reopened and, if meritorious, will be approved.

How can I learn more?

Seyfarth will be holding a webinar on Tuesday, July 9th from 1:00 p.m. to 2:30 p.m. Eastern time to discuss the implications of Windsor and share practice guidance. Details will follow in a separate communication.

In the meantime, Seyfarth Shaw's Business Immigration team will be closely monitoring all relevant developments and be sharing them with you.