Published:  July 1, 2013

This past week the U.S. Supreme Court struck down the Defense of Marriage Act, a federal law that defined marriage as a union between a man and a woman and effectively de-legitimized same sex marriage.  The main consequence of the Supreme Court decision is that the federal government will now have to recognize same sex marriage as equal to opposite sex marriage in all of the legal realms where being married brings legal benefits or presents legal ramifications, including tax law, family law, social security law and immigration law – to name a few.

Little by little, states across our country have been enacting legislation that legalizes same sex marriage, but until the recent Supreme Court decision, those marriages were not recognized within federal legal contexts, such as U.S. immigration law.  As of this moment, there are 12 states where same sex couples can get married (13 by August 1) – including Iowa, and there appear to be no obstacles to allowing couples residing outside these states from traveling there to marry.

Immigration law repercussions:  For certain, there will be many.  Most notably, foreign nationals present in the U.S. who were admitted or inspected (i.e. passed thru official immigration inspection)– even visa overstays – can now file to adjust their status and undergo all immigrant processing in the U.S.  by way of their marriage to their same sex, U.S. citizen spouse.  Further, for same-sex, foreign spouses residing abroad, the U.S. government will apparently now allow for the consular processing of immigrant visas as long as the marriage was considered legal in the country where it took place.

Still, the foreign national must not be subject to any bases of ineligibility such as criminal or other grounds.  Further, the applicant must demonstrate that their marriage is “bona fide” – or genuine – and not just for the purpose of facilitating immigration benefits.  Exactly how the Homeland Security folks are going to assess on that issue will be interesting to watch, to say the least, since up to this point, only the sincerity of opposite sex marriages were under the sincerity microscope.  Traditional questions surrounding how the couple fell in love, when they met each other’s extended family and how long have they shared a residence and romantic relationship, indeed take on new dimensions in the same- sex marriage realm, especially since many same sex partners may not be “out” about their relationship or sexuality.

Additionally, now a foreign national defending in removal proceedings can use their marriage to their U.S. citizen or permanent resident same sex spouse as a basis when seeking relief, such as in applying for “cancellation of removal”, where hardships to family members, such as U.S. spouses are an essential factor.

In the wake of the Supreme Court’s decision, Donna Napolitano, the Secretary of Homeland Security, issued a statement acknowledging the import of the ruling and declaring that procedures for processing immigration benefits for same sex spouses would be implemented without delay:

“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (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 spouse.”

As I have for more than the past decade, I will continue to cover all developments is this emerging area of immigration law.

PUBLISHED July 1, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois