On June 26, 2013, the U.S. Supreme Court ruled in United States v. Windsor that Section 3 of DOMA (Defense of Marriage Act) was unconstitutional. Section 3 reads:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
Note that Section 2 of DOMA was not challenged in this case and remains valid law for now. Section 2 allows states to refuse to recognize same-sex marriages performed under the laws of other States.
The Supreme Court ruling allows individuals to obtain immigration benefits associated with marriage if they were married legally in a State where same-sex marriage is legal.
Effects on Immigration Benefits
Prior to February 2011, the U.S. Citizenship and Immigration Services (USCIS) routinely denied family petitions or immigration benefits to same-sex couples. However, after President Obama announced that the Department of Justice would not defend DOMA, USCIS held immigration cases involving same-sex couples in abeyance pending a court ruling. At the American Immigration Lawyers Association’s annual conference in San Francisco on June 27, USCIS Director Mayorkas announced that the Service was ready to act swiftly on these cases. Further, Secretary Napolitano of the Department of Homeland Security issued a statement on July 2 indicating that she has directed USCIS 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 couple”. We anticipate that USCIS will continue issuing instructions in coming days for previously denied, pending, and future cases involving same-sex marriage.
At first glance, the issue may seem simple. A homosexual individual can now petition his/her spouse for immigration benefits if they were married in a state in which such marriage is legal. However, a closer examination reveals many uncertainties.
Bona Fides of the Marriage
Proving that a marriage is truthful is critical in any family case. Some marriages require little effort to prove their truthfulness because the couple has been married for a long time, and have children and have accumulated extensive documentation. However, some cases are more challenging. For example: some marriages are arranged; some couples come from vastly different cultures or have a large age gap; some may have few documents evidencing the relationship due to an abbreviated courtship. The same applies to same-sex couples. The question is whether USCIS examiners will look at the evidence presented by same-sex couples with the same standard currently applied to heterosexual couples.
Further, many states and countries continue to reject homosexuality and same-sex marriages. In places like these, bona-fide same-sex couples may have taken measures to hide their relationship and there may be little objective evidence to prove a genuine union. Same-sex couples may have additional challenges obtaining affidavits from church leaders or family members, particularly if the same-sex couples have not made their relationships “public” or if church leaders and family members are unsupportive. Employment, medical, and other relevant records may indicate status as “single” and are therefore inconsistent with a claim of a same-sex relationship. They may not have evidence that is considered “normal” or “expected” in a heterosexual marriage. Worse yet, if a married same-sex couple has consistently been indicating his/her marital status as “single” on USCIS documents because USCIS did not recognize same-sex marriage before, would a change to “married” now mean the prior declaration was “fraudulent” or in some way taint the current application because of perceived inconsistency?
Spouses of employment-based immigrants will receive the same benefits. If the principal employee/applicant is in a same-sex marriage, does it mean his/her spouse can obtain the green card too? How would USCIS treat evidence of same-sex marriage in an employment-based case for a derivative beneficiary?
Timing is Everything
Timing is important in obtaining immigration benefits. A spouse can be included or excluded on a given immigration application based on the timing of the marriage. It is common for an individual who is in removal or deportation proceedings to marry a U.S. citizen or permanent resident spouse so that he/she can be eligible for immigration benefits. These relationships are always scrutinized by USCIS because they are perceived as “marriages of convenience.” They will be looked at even more closely if the relationship is homosexual. In addition, many couples and USCIS detention centers are located in states in which same-sex marriage are not recognized and where there is no way of getting married legally. How would USCIS treat them? Would they be permitted to travel to another state where same-sex couples can be married legally? Arizona has two large USCIS detention facilities in Eloy and Florence. Would a detained inmate be allowed to travel to California, a nearby state, in which same-sex marriage is legal so that he/she can be married. Would a bond be issued on that basis?
We may need a completely new definition of fiancée visa from this point forward. However, there are also pressing practical issues as well. What if a fiancée resides in a country that scorns same-sex relationship and marriage? Would the fiancée who attends such visa interview be exposed to public ridicule or even mortal danger?
What about the Children
Immigration benefits extend to children in many cases. Same-sex couples cannot have their own children biologically. What about their adopted children? What about birth children of a person before he or she became homosexual? Are they included? What about stepchildren? How are they defined and would they be included?
Bad Marriages and Divorces
Some immigration benefits are accorded to individuals who are in bad marriages. An abused spouse may file for benefits absent the support of the US citizen spouse. Would the same be extended to same-sex couples? How is USCIS going to treat same-sex divorces and subsequent re-marriages in a same-sex relationship or heterosexual relationship?
Location and Movement
It should be noted that the Supreme Court only ruled that federal benefits could not be denied to same-sex couples if their marriage is legal in a state in which they live. Section 2 of DOMA allowing each state to determine whether it would recognize same-sex marriage performed in another state remains fully valid. What are the effects of same-sex couples who move from state to state which has different legal definition of marriage? For now, Secretary Napolitano explained that same-sex couples living in a state in which same-sex marriage is not legal may still file family petitions and these cases will be considered on a case-by-case basis. Additional guidance is anticipated shortly in this area.
We are in uncharted territory in US immigration benefits. The implication of the Supreme Court decision is far reaching and it will probably be years before its full effects will be understood. However, within the realm of immigration, this Supreme Court decision has immediate consequences to all affected cases, whether they have been denied, pending, or are being contemplated.