There are an estimated 28,500 binational same-sex couples and nearly 11,500 same-sex couples in which neither partner is a U.S. citizen. The immigration repercussions of the Supreme Court’s gay marriage rulings could be huge for same-sex couples in which one partner seeks permanent residence.
In two separate landmark U.S. Supreme Court decisions handed down on June 26th, 2013, the Defense Against Marriage Act (DOMA) was found to be unconstitutional and the (anti-gay marriage) plaintiffs challenging California’s infamous Proposition 8 were found to have lacked standing.
In plain speak, the federal government no longer has legal grounds to ban gay marriage under DOMA and gay marriage is now legal in California.
How The Supreme Court’s Decision Will Positively Impact Immigrants in Same-Sex Couples
The implications for bi-national same-sex couples (that is, where one spouse is an American citizen and the other spouse is a foreign-born individual) are huge. DOMA defined marriage as a union between “one man and one woman.” DOMA also defined “spouse” as a "person of the opposite sex." This unconstitutional law constituted a bar (or legal obstacle) to a US Citizen successfully petitioning his or her same-sex foreign-born spouse for lawful permanent resident (LPR) status. In fact, the US Citizenship and Immigration Services (USCIS) has previously stated that “no legal authority permits recognition of homosexual relationship as ‘marriages’ for purposes of immigration and nationality laws, regardless of whether the relationship may be recognized as a ‘marriage’ under the law where the relationship came into existence.”1 However, the Supreme Court decision now gives the USCIS legal authority to permit recognition of same-sex marriages.
Department of Homeland Security (DHS) On Board With Ruling
The USCIS falls under the purview of the Department of Homeland Security (DHS). DHS Secretary Janet Napolitano heaped praised the Supreme Court’s ruling, which effectively overturns the Defense of Marriage Act (DOMA). Napolitano said she would work toward extending immigration benefits to lawfully-married couples.
“Working with our federal partners, including the Department of Justice, we will implement [the Supreme Court’s] decision so that all married couples will be treated equally and fairly in the administration of our immigration laws,” Napolitano said.
Understanding Immigration Marriage Visa LawThe Immigration and Nationality Act provides that a US citizen spouse can petition his or her foreign-born spouse to resident lawfully in the United States. The Immigration Marriage Fraud Amendments Act of 1986, however, provides that a marriage immigrant visa (that is, where the US Citizen spouse petitions his or her foreign-born spouse) only results in conditional residence status. Conditional residence means that the foreign-born spouse may lawfully reside in the United States BUT within ninety (90) days of the second anniversary of the grant of conditional residence, the couple must file a joint petition. If this joint petition is granted, the conditional residence becomes permanent residence. The exception to this 2-year condition is if the marriage is more than two (2) years old at the time that immigrant status is granted.
A binational same-sex couple will still have to abide by all the requirements of the Immigration and Nationality Act and Immigration Marriage Fraud Amendments Act. And the marriage would have to occur in a state in which same-sex marriage is valid. In California, with deservedly-despised Proposition 8 buried in the proverbial cemetery of unconstitutional laws, gay marriage is once-again legal.
Here’s the Bottom Line
As soon as the Ninth Circuit Court of Appeals lifts its hold on an injunction against Proposition 8, same-sex couples in California will again be able lawfully wed. If one of the spouses is foreign-born and entered the country lawfully, the US citizen spouse will be able to petition his or her same-sex spouse. If the visa requirements are met, the foreign-born spouse can gain lawful permanent residence.
1 Memo, Yates, Assoc. Dir. Of Operations, USCIS, HQOPRD 70/6 ¶III (Apr. 16, 2004).
Nothing in this article or anywhere on this blog constitutes legal advice of any way, shape or form. The foregoing is a statement of opinion only.
Having been involved nearly one decade in the immigration law field, initially as a law clerk and then as an Attorney, Lorgio Coimbra is a vastly-experienced, highly-skilled, extremely well-versed, extremely knowledgeable and results-oriented Immigration Attorney in Los Angeles. Lorgio Coimbra is a native and fluent-Spanish speaker, who is, himself the son of immigrants. If you are married to a foreign-born spouse who is seeking lawful permanent residence in the United States, please contact my office at 1-800-290-5055 and / or you may contact me by e-mail at CoimbraLaw@Yahoo.com
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