Last Wednesday, the Supreme Court of the United States issued an historic ruling for gay rights, gay Americans, and gay immigrants. Section 3 of the 1996 Defense of Marriage Act, or DOMA, was ruled unconstitutional on the grounds that “By seeking to displace this protection and treating those [gay] persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.
The big win for all gay couples in this ruling is access to U.S. federal benefits. This includes being able to file joint tax returns, access to veteran spouse benefits, access to federal family and medical leave, and, especially important for binational couples: U.S green cards and immigration benefits for same-sex spouses.
What does the DOMA ruling mean for U.S. Immigration and Gay Immigrants?
1) Green Cards for Gay Immigrants Married to U.S. Citizens
After the ruling last week, there were many questions on how USCIS would proceed with processing green card cases for same-sex spouses. Luckily, the government has acted quickly: gay couples have already been approved for their green cards just days after the ruling by applying the exact same way a straight couple would. These couples had all applied for green cards for their spouses prior to the ruling. For many gay immigrants and their spouses, applying for their green card was both a political statement and also an act of hope and desperation to keep their loved ones in the United States.
The Secretary of the Department of Homeland Security’s official statement on DOMA and Green Cards is as follows: “Effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. This tells us that moving forward, gay couples should be able to file for green cards the exact same way as straight couples do.
With this official statement, all bi-national gay couples seeking a green card should know that they should not be denied their application if they were legally married in a state or country that allows gay marriage. There may be lawyers or immigration specialists who will claim to tell you they cannot process any same-sex spouse green card application, but this is out of ignorance or bigotry. The U.S. Supreme Court, USCIS, and DHS have all gone on record saying gay couples now have access to spouse and family-based visas, so there should be no dispute.
2) Halting Deportations of Same-Sex Spouses (in certain cases)
Just minutes after the DOMA ruling, a man who was legally married to a male U.S. citizen had his deportation charges dismissed. Although he was unauthorized to live in the U.S., he had already applied for a green card at the time of his marriage.
3) U.S. Businesses Become More Competitive for Hiring and Retaining Gay Immigrant Employees
Previously, a high-skilled or temporary visa worker might have reservations coming to work in the U.S. if they had a same-sex partner in their country of origin. Under the old law, there was no way for an immigrant worker to petition their spouse to come stay with them in the U.S. American businesses have gone on record saying that they don’t want to lose valuable gay and lesbian employees because of a discriminatory and complicated U.S. immigration system. Now their employees will have access to the greater immigration benefits afforded to all other U.S. married couples.
There is no doubt in anyone’s mind that there will be far more questions about green cards and other immigration issues for gay couples as time goes on. DOMA doesn’t solve everything for gay Americans and it certainly doesn’t fix all that’s currently broken in the U.S. immigration system. However, the progress made for gay immigrants in the past week has been inspiring and hopefully foreshadows major changes in attitude over the rights of immigrants and the rights of the LGBT community.
For further updates on DOMA and its effect on USCIS policies, as well as the impact on comprehensive immigration reform, follow our blog or get connected on Facebook and Twitter. If you have questions, don’t hesitate to contact us.
