• What the Supreme Court's DOMA Ruling Means for Immigration Benefits
  • September 23, 2013 | Author: Silas M. Ruiz-Steele
  • Law Firm: Barley Snyder - Reading Office
  • On June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act ("DOMA"), which defined marriage as a union between one man and one woman, is unconstitutional, opening the door for the extension of federal benefits to same-sex legally married couples.

    Following this decision, Secretary of Homeland Security, Janet Napolitano, directed U.S. Citizenship and Immigration Services ("USCIS") to immediately begin reviewing immigrant visa petitions (i.e., green card sponsorship petitions) for same-sex spouses in the same manner as petitions filed on behalf of opposite-sex spouses.

    While DOMA’s overruling has raised complex questions for employers regarding benefit plan administration and FMLA benefits, the implementation of this decision is clear in the federal immigration context. Companies should be aware of these new immigration benefits for same-sex couples, even if their business is located in a state that does not recognize same-sex marriage. Same-sex couples are legally married for the purposes of immigration law if the marriage took place in a U.S. state orforeign country that recognizes same-sex marriage, regardless of the couple’s current place of residence.

    When filing a family-based immigrant petition on behalf of a spouse, the petitioning spouse must prove the marriage is not fraudulent or entered into for the sole purpose of obtaining immigration benefits. The USCIS will look for proof that the relationship is real, including proof that the couple live together, share finances, hold themselves out as a couple, spend holidays together, and in some cases raise children together. Current employees may ask their employers to assist in confirming the relationship’s legitimacy by providing confirmation letters and benefit assignment information for the petitioning spouse.