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Update: DOMA and Immigration

Screen Shot 2013-06-28 at 2.40.19 PM.pngOn Wednesday, June 24th, the Supreme Court of the United States issued a groundbreaking decision by ruling to extend eligibility for federal benefits to same-sex couples. This decision will affect hundreds of thousands of immigrants currently in same-sex relationships with U.S. citizens.

United States v. Windsor

The case United States v. Windsor implicated the federal law Defense of Marriage Act (DOMA). DOMA, which was signed into law by former President Bill Clinton, defines marriage as the union of one man to one woman for the purpose of federal benefits such as the right to not testify against your spouse, the right of inheritance from one spouse to another, and the right of a spouse to petition for his/her spouse to receive immigration benefits.

In Windsor, the Supreme Court effectively repudiated the DOMA definition of marriage by ruling that federal benefits should be accorded to all couples equally, regardless of whether the relationship comprised a man and a woman or a same-sex couple.

How Windsor Will Affect Immigration

The decision in the Windsor case is the first step in the pathway to citizenship for the projected 36,000 same-sex couples that involve a foreign national partner. U.S. immigration law allows American citizens and lawful permanent residents (green card holders) to petition their spouses for permanent residency status. Once the spouse has been a permanent resident for three years, the spouse can then complete the naturalization process to become a U.S. citizen.

Department of Homeland Security Janet Napolitano has already confirmed that U.S. Citizenship and Immigration Services (USCIS), the agency that reviews petitions for immigration benefits, will implement the Windsor decision in petitions for same-sex couples.

First Victory Reported in New York

One same-sex couple has already enjoyed a victory in the immigration court on account of the Windsor decision. In 2011, U.S. citizen and New York resident Sean Brooks sponsored his husband, Colombian national Steven, for a green card. However, due to the DOMA definition of marriage as being only between a man and a woman, USCIS denied the green card application.

Once USCIS denied the petition, Steven had no underlying basis for legal status in the U.S. which left him vulnerable to deportation. Happily, only minutes after the Windsor decision was announced, the New York immigration judge presiding over Steven’s case stopped his deportation proceedings, which will allow Sean to re-petition for Steven’s green card immediately. Now that same-sex couples are afforded the same federal benefits as heterosexual couples, Sean and Steven are confident that USCIS will easily approve the green card petition this time around.

The Rant

The Windsor decision represents a monumental step in immigration reform. Hundreds of thousands of same-sex families will now have the opportunity to finally reunite their and establish their families in the United States. The Supreme Court has truly struck a victory for Americans and their foreign national partners.

More Blog Posts:

USCIS Has Allegedly Undercounted H-1B Approvals Since 2008, ImmigRantings, February 28, 2013
Denial Rates for H-1B Visas Rising in U.S. Consulates in India, ImmigRantings, February 19, 2013
Immigration Advocacy Group Alleges that USCIS Targets Small Businesses for H-1B Scrutiny, ImmigRantings, January 5, 2013