SCOTUS, POTUS, and DOMA: Victory for Same-Sex Binational Couples

gaywedNice quote from the President, regarding today’s Supreme Court decision in U.S. v. Windsor striking down the bulk of the federal Defense of Marriage Act (DOMA), which had defined marriage as solely between a man and a woman (and thereby blocked all manner of federal rights and benefits to anyone who didn’t fit the definition):

“I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. . . . I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”

So, it looks like it’s full steam ahead for implementing this law in the immigration context. Up until now, same-sex marriages didn’t count for a thing if the couple wanted to obtain a green card or visa for the foreign-born person. Today, these marriages do count, just the same as anyone else’s. All that matters is that they were legal in the state or country where they took place (so same-sex couples who live in places where same-sex marriage is NOT legal will have to find someplace else to get married in order to take advantage of this ruling).

Already, a New York immigration judge has reportedly halted the deportation proceedings of a gay Colombian man who is legally married to a U.S. citizen. Another male couple in New York, scheduled for a marriage-based green card interview with U.S. Citizenship and Immigration Services (USCIS) yesterday, had their interview postponed until after the DOMA decision — with hopefully an approval on the horizon. (It must have taken some guts to apply for the green card in the first place, knowing that if DOMA was upheld, their case would be denied and the noncitizen could be placed in deportation proceedings.)

The immigration bar has, so far, come up with no reasons why same-sex immigrant couples shouldn’t start filing their applications for green cards right away — with the small caveat that this process is harder than you might think (even for opposite-sex couples), and we still don’t know how quickly USCIS will actually adapt to this new regime. Don’t be surprised if you get some weird requests for evidence during the application process.

This decision should also allow noncitizens coming to the U.S. on temporary visas (H-1B, L-1, J-1, and so on) to obtain derivative visas for their same-sex spouses. (Here, at least, the U.S. government showed some flexibility in the past, by issuing the same-sex spouse a tourist, B-2 visa.)

Scheduling an in-person consult with an immigration attorney is an excellent idea.

For more information, see Nolo’s update, “Same-Sex Marriage Now a Basis for U.S. Lawful Permanent Residence (a Green Card).”