On June 26, 2013, the Supreme Court ruled in a 5-4 decision 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.
Today, Secretary of Homeland Security Janet Napolitano announced that she has directed U.S. Citizenship and Immigration Services (USCIS) to immediately begin reviewing immigrant visa petitions (i.e., green card sponsorship petitions) filed on behalf of same-sex spouses in the same manner as petitions filed on behalf of opposite-sex spouses. USCIS will no longer automatically deny a petition based on the same-sex nature of the petitioning couple’s marriage.
To be eligible for immigration benefits, same-sex couples must prove, among other things, that they were legally married in a state or country where same-sex marriages are valid. USCIS will consider where the marriage took place when determining whether the marriage is valid. If a couple married in a state or country where same-sex marriages are legal, but reside in a state where same-sex marriages are not legally recognized, USCIS plans to extend benefits to the same-sex spouse because the marriage took place in a jurisdiction where same-sex marriages are valid and legally enforceable. Importantly, immigration benefits cannot be extended to partners in a same-sex domestic partnership or civil union at this time.
From a practical standpoint, same-sex couples may experience increased scrutiny in proving as part of the family-based green card process that their marriage is bona fide until USCIS sorts out its administrative procedures and rules for handling petitions for same-sex couples. When filing a family-based immigrant petition on behalf of a spouse, the petitioning spouse must prove that the marriage is not fraudulent or entered into for the sole purpose of obtaining immigration benefits. In examining whether a marriage is bona fide, USCIS typically looks at evidence such as joint tax returns, joint mortgages, joint accounts and utility bills, children’s birth certificates, insurance beneficiary designations, support letters from family members and friends, photographs and other similar evidence that would suggest that the couple did not marry solely to circumvent immigration laws. For various legal or societal reasons, same-sex couples may have less of the evidentiary items that USCIS has traditionally examined in adjudicating green card applications for opposite-sex spouses.
Although Secretary Napolitano did not expressly say, the Supreme Court’s ruling should also ensure that USCIS extends benefits to same-sex spouses of non-immigrant visa holders, meaning the holder of a non-immigrant visa, such as an H-1B, will now be permitted to bring his or her same-sex spouse and the couple’s children to the U.S. on accompanying family member visas. Similarly, immigration judges are expected to permit the extension of certain forms of relief in deportation proceedings to spouses in same-sex marriages, such as cancellation of removal, where the immigrant subject to deportation must show that his or her U.S. citizen or legal permanent resident spouse will face hardship should the individual be deported.