Impact of the Supreme Court Striking Down the Defense of Marriage Act on Immigration

Immigration Attorney Grant GodfreyBy: Grant Godfrey

On June 26, 2013, the Supreme Court struck down the federal 1996 Defense of Marriage Act (“DOMA”), ruling in a 5-4 decision that the law violates the rights of gays and lesbians and intrudes into states’ rights to define and regulate marriage. DOMA prohibits the federal government from recognizing same-sex marriages, even if they have been conducted in the 12 states and District of Columbia that allow them. The effect of DOMA is that it has denied the extension of over a thousand federal benefits to same-sex couples.

Since the cornerstone of Immigration Law, the Immigration and Nationality Act, is federal law, the Department of Homeland Security has been required under DOMA to prohibit same-sex couples from sponsoring each other for immigration benefits that heterosexual spouses are routinely granted, including derivative nonimmigrant visas (e.g. H-4 and L-2 status), Green Card sponsorship (e.g. as an immediate relative or as a derivative beneficiary of their spouse’s being granted a Green Card), and accelerated naturalization for Green Card holders who are living with their U.S. Citizen spouse.

The agency in charge of granting immigration benefits, the U.S. Citizenship and Immigration Services (“CIS”), has not yet issued a press release as to whether it will immediately begin granting these benefits to same-sex couples. We expect that there will be some delay as CIS drafts internal policy memoranda and we will provide updates on any important developments.

Please do not hesitate to contact the attorneys in our Immigration Practice with any questions about the impact of the Supreme Court striking down DOMA, or any other important immigration questions that you may have.

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