On June 26, 2013, the Supreme Court of the United States struck down a provision of the federal Defense of Marriage Act (DOMA) that denied federal benefits to same-sex partners. In a 5-to-4 ruling in United States v. Windsor, the court held that “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” This decision is likely to have profound impact in the area of immigration law.

Under the Immigration and Nationality Act (INA) and principles of legal reciprocity, immigration authorities are required to respect and apply the law where a marriage took place. A marriage is recognized as valid as long as it is sanctioned by the law of the place of marriage. However, following the enactment of DOMA, which, for federal purposes, defined marriage as the legal union between one man and one woman, this recognition was limited to opposite-sex marriages, resulting in the denial of immigration benefits to same-sex couples. As a result of the Supreme Court ruling, same-sex spouses are entitled to the same treatment under federal law as opposite-sex spouses, meaning that same-sex petitioners and beneficiaries in legitimate marriages sanctioned by the U.S. state or foreign country in which the marriage arose will now have access to immigration benefits and recognition by immigration authorities.

Impact of the Legislation

The ruling by the Supreme Court now obliges the U.S. Citizenship and Immigration Services (USCIS) to recognize lawful same-sex marriages for purpose of administering benefits under immigration laws. This should enable same-sex spouses to immigrate to the United States through both employment-based and family-based permanent residence processes and to travel to the United States as derivative beneficiaries of principal nonimmigrant visa holders. The ruling also impacts pending immigration reform legislation. Senator Patrick Leahy (D-VT) had proposed an amendment to the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S. 744) that would benefit same-sex partners but the amendment was opposed by several Republican senators who made it clear that they would no longer support the bill if the amendment was added. After the Supreme Court verdict, this issue appears to be moot and has been removed from the debate over immigration reform.

Janet Napolitano, the Secretary of Homeland Security, applauded the ruling on DOMA, stating that “(t)his discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits.” Napolitano commented further that the U.S Department of Homeland Security, in conjunction with the U.S. Department of Justice and other federal agencies, will work to implement the Supreme Court’s decision “so that all married couples will be treated equally and fairly in the administration of our immigration laws.”.

Ogletree Deakins will continue to monitor USCIS’s changes as a result of the Supreme Court ruling and provide prompt notice of when applicants may derive benefits under immigration regulations.


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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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