In United States v. Windsor, the Supreme Court invalidated a section of the Defense of Marriage Act (DOMA) – which defined marriage as a union between a man and a woman – as unconstitutional. DOMA’s definition of marriage prevented same-sex couples from taking advantage of immigration benefits, but now same-sex couples will receive the same benefits as heterosexual couples. Janet Napolitano, Secretary of the Department of Homeland Security, commented on the ruling, saying, “[ E ]ffective immediately, I have directed U.S. Citizenship and Immigration Services to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
The Supreme Court’s ruling applies to several provisions of the Immigration and Nationality Act, including sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status).
Companies should be aware of these new immigration benefits for same-sex couples, even if their business resides 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 or foreign country that recognizes same-sex marriage, regardless of the couple’s current place of residence. For example, an employee who legally married his or her same-sex spouse under Massachusetts law can apply for immigration benefits for his or her spouse, even if the employee resides and works in Pennsylvania, which does not recognize same-sex marriage. California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and the District of Columbia have legalized same-sex marriage.
Employees in same-sex marriages may qualify for several immigration benefits. For example, an employee that is a U.S. citizen or permanent resident may petition for marriage-based immigration for his or her same-sex spouse. USCIS has not issued specific guidance regarding whether or how the Supreme Court’s decision in DOMA will affect non-immigrant derivative visas.