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DOMA Ruled Unconstitutional – Same Sex Couples Can Now Apply for Immigration Benefits

Posted in Civil Unions and Domestic Partnerships

This guest post is authored by Alka Bahal.  Alka is a Partner and Co-Chair of Fox’s Corporate Immigration Practice and contributes to Fox’s Immigration View blog.  She can be reached at abahal@foxrothschild.com or 973.994.7800.


As you have probably already heard, on Wednesday, June 26, 2013 the Supreme Court ruled that the Defense of Marriage Act (“DOMA”) is unconstitutional, which means that same-sex couples who are legally married in any jurisdiction that permits same-sex marriage can now apply for marriage-based immigration benefits. Accordingly, U.S. Citizens and legal permanent residents can now sponsor their foreign-born spouses for green cards and visas, as long as their marriage is recognized by the state or foreign jurisdiction where they married.

Some also believe that the striking down of DOMA will likely have a positive impact on the passing of the new immigration bill, S. 744.  The several attempts to include an amendment to the bill favorable to married homosexual couples were highly contested and considered an impediment to the bill’s passage.

“This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits,” Secretary of Homeland Security Janet Napolitano said in a statement Wednesday. “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

At the annual American Immigration Lawyer’s Conference in San Francisco yesterday, U.S. Citizenship and Immigration Services Director Alejandro Mayorkas indicated that not only would USCIS comply with Secretary Napolitano’s directive to immediately implement the Supreme Court’s Decision, but that his office has maintained a list of all I-130 applications (U.S. Citizen/LPR sponsorship of a spouse for permanent residency) denied under DOMA, which will be put back into process and approved.

It’s a new era in immigration law – to be further invigorated by the vote on S. 744.  Stay tuned!