SUPREME COURT RULING MAKES IMMIGRATION OF MARRIED SAME-SEX COUPLES POSSIBLE
© Attorney Farhad Sethna 2013
On June 26, 2013, the Supreme Court issued a landmark decision in United States v. Windsor, Case # 12-307.
In Windsor, the Supreme Court held that Section 3 of the federal “Defense of Marriage Act” (DOMA), which had defined marriage and spouse as excluding same-sex partners was unconstitutional.
DOMA was passed in 1996. It re-defined “marriage” as being recognized only if it was between spouses of the opposite sex. The case itself was not predicated on the issue of marriage. It was a challenge to the Internal Revenue’s refusal to refund estate taxes paid by a same-sex spouse on the death of her partner. Even though Edith Windsor and Thea Spyer were married in Ontario, Canada, the State of New York recognize their marriage. Despite the state’s recognition, the federal government however, did not recognized the marriage and levied estate taxes on Windsor on the death of Thea Spyre. Windsor sued, and the case eventually wound up at the Supreme Court.
In its holding, the Supreme Court essentially dismissed the federal government’s definition of marriage as set forth in section 3 of DOMA.
The Supreme Court held that DOMA usurped the rights of states to develop and promulgate laws regarding domestic relations. In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court recognized that, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the states”.
Thus, the Supreme Court held that DOMA frustrated the State of New York’s objective of eliminating inequality (between same-sex and heterosexual married couples) by in essence, writing inequality into the entire United States code. In so doing, the Supreme Court held that DOMA’s principal effect is to “identify and make unequal a subset of state-sanctioned marriages”. Therefore, DOMA created “two contradictory marriage regimes within the same state”.
How does this affect the immigration of married or unmarried same-sex couples?
US immigration law recognizes a marriage as valid for immigration purposes if it is legally recognized in the jurisdiction where it was celebrated. For an immigration application as the spouse of a US Citizen (0r permanent resident), one partner to the marriage has to be a US Citizen or a Legal permanent resident. The other partner is the non-US citizen. If a same-sex marriage is celebrated in a country which recognizes same-sex marriage, or in a state of the United States which permits and recognizes same-sex marriage, then such a marriage would be treated as being valid as a valid marriage for immigration purposes. Thus, if an alien who is married to same-sex partner in any of the jurisdictions where same-sex marriage is specifically recognized under the law, that alien would be entitled to immigration benefits through his or her US citizen or permanent resident spouse. From the immigration perspective, note that while there is no quota (and hence a backlog) for spouses of US Citizens, there is a substantial backlog for spouses of Permanent residents. Unmarried children under 21 of the non-US spouse can also immigrate as derivative beneficiaries as long as the marriage was celebrated before the child turned 18.
Limitations of the Supreme Court decision:
The Windsor case does not extend to either domestic partner relationships or to “civil unions” which some states permit. In other words, for immigration benefits to accrue, at least at this time, such benefits can accrue for same-sex couples only if they have been legally married in a jurisdiction which recognizes the validity of such same-sex marriage. It does not matter where in the USA they reside after they are married as long as they were legally married in a jurisdiction which recognized same-sex marriage.
Based on such marriage, it would therefore clearly appear that same-sex couples may be entitled to federal immigration benefits, which apply equally throughout the United States. Indeed, there are already reports of immigration judges dismissing deportation cases of individuals who may be eligible for relief under the Windsor decision! Kudos to the legal team and the plaintiffs for having the courage to stand by their convictions and making new law that will positively affect the lives of many families!
Copyright, Farhad Sethna, Attorney, 2013
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.