- DOMA is Gone, What Effect Does it Have on Immigration?
- July 8, 2013
- Law Firm: Fowler White Boggs P.A. - Tampa Office
The Supreme Court unequivocally affirmed that there is no legitimate reason for the federal government to discriminate against married couples on account of their sexual orientation. In United States v. Windsor, the Justices struck down Section 3 of the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman, noting in their decision, "DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal."
Because of DOMA, U.S. governmental agencies handling immigration procedures only recognized lawfully married couples - Under DOMA's federally mandated discrimination, that explicitly excluded same-sex couples. This meant that gay and lesbian U.S. citizens and lawful permanent residents couldn't obtain immigration status for their noncitizen spouses. Consequently, bi-national same-sex couples were forced to choose between separation or staying together, but living in exile from the U.S. As a result of DOMA, families have been separated and lawful spouses of U.S. citizens and permanent residents have been deported from the United States.
The Supreme Court decision means that legally married same-sex couples now have the same immigration rights as straight couples, including sponsoring them for legal permanent resident or dependent status. President Obama issued a directive to the Attorney General to "work with other members of [his] Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly." In a similarly driven statement the Secretary of Homeland Security, Janet Napolitano also issued the following statement "I applaud today's Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits. I am pleased the Court agreed with the Administration's position that DOMA's restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."
Despite the Supreme Court decision, there will remain challenges for same-sex couples contemplating the commencement of immigration procedures. Only twelve states and Washington, DC (in addition to 15 countries across the world) recognize same-sex marriage. Same-sex bi-national couples may also face more difficulties than heterosexual couples. Applications for legal permanent residence based on sponsorship by a spouse require the provision of evidence of bona fide marital relationship. These factual evidences are subject to agency review and require being able to provide a certain amount of documents or testimonies corroborating the relationship. Unfortunately, some same-sex petitioners and beneficiaries may have not disclosed their sexual orientation to their friends, family, employer, etc. meaning that a bona fide relationship might be hard to prove. For others, it might actually not be safe to openly admit they are homosexuals, much less identify a spouse. The Supreme Court decision strikes down the Federal government's ban on recognition of marriage - while it is a decisive step forward for the immigration rights of same sex couples, they might still face more difficulties than heterosexual couples.