The Justice Department announced in February that based in part on the recommendation of Attorney General Eric Holder, President Barack Obama has determined that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and will no longer defend it in court.

Many people in same-sex marriages file business immigration applications because they have no alternative. Their applications may be backlogged due to numerical limitations. This issue is also important from a business immigration perspective because many beneficiaries of both I-140 immigrant visa petitions and nonimmigrant visa petitions may be in same-sex marriages that have been legally recognized in other countries and some states within the U.S., but they cannot avail of derivative status, such as H-4 or L-2 (which also carries with it work authorization privileges) or even derivatively obtain permanent residence with the principal.

Such people, along with their employers, should be advised about the paradigm shift in the administration’s position on DOMA, and the potential to challenge existing Department of Homeland Security (DHS) policy in litigation, which the Department of Justice will no longer oppose. Even if an affected individual chooses not to litigate, it is expected that someone will eventually challenge DHS policy, and if it succeeds it will benefit everyone in the same situation.

On the other hand, given the uncertainty regarding the timing and nature of final judicial action on this subject, it would be extremely risky for same-sex married couples to affirmatively seek immigration benefits in reliance on this announcement. It could even be risky for same-sex couples to marry in reliance on the announcement, if the current status of one of the spouses depends on showing a foreign residence and no intent to abandon it (such as with a B-1/B-2 visitor or F-1 student).

The Attorney General’s statement is available here.