Same-Sex Spouses May Now File Petitions Under the Immigration Laws
Yesterday, on June 26, 2013, the Supreme Court of the United States struck down the federal Defense of Marriage Act (DOMA) that defined marriage as between a man and a woman in the case United States v. Windsor. This definition excluded same-sex spouses from receiving the same treatment as other spouses under federal law.
For immigration purposes, DOMA meant that many legally married same-sex couples—some who had been in dedicated relationships for many years, and may have children together—were forcibly separated to different countries, or were unable to move out of the shadows. A U.S. Citizen or lawful permanent resident spouse who was legally married under state law, or under the laws of the country in which the marriage occurred, could not petition for legal status for his or her foreign national spouse. If a foreign national spouse in a same-sex marriage was placed in removal or deportation proceedings, the extreme hardship to his or her spouse could not be considered in defense, no matter how extreme the circumstance. Legally married couples remained in the shadows or were forced to endure extended separations because their relationships were not recognized by the federal government.
The Obama Administration has refused to enforce DOMA in the immigration context, placing same-sex spousal petitions on hold and declining to deport some spouses of U.S. Citizens and lawful permanent residents in removal proceedings for a an indefinite period of time. But the fact DOMA existed and was still in force meant those petitions could not be granted, and benefits could not be provided. Those couples were in a holding pattern, waiting for the law and society to provide official recognition of the need for their equal rights as married couples.
In United States v. Windsor, Edith Windsor and Thea Spyer, two women, were married in a legal ceremony in Ontario, Canada in 2007, and then returned to their home in New York. Thea died in 2009. When Edith tried to claim the federal estate tax exemption for surviving spouses, she was prevented from doing so by DOMA, even though the state of New York recognized their marriage. Edith paid over $363,000 in taxes she would not have had to pay had her spouse been a man, and filed a law suit to reclaim that money.
The U.S. Supreme Court found:
The federal statute [DOMA] is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.
U.S. v. Windsor, 570 U.S. ____, at 26 (2013).
For immigration purposes, same-sex couples that are legally married under state law or the laws of the country in which it occurs should finally be able to apply for immigration benefits in the United States.
Knudson Immigration represents families in petitioning for their foreign national family members, and defends individuals against deportation. Contact Knudson Immigration to schedule a consultation.
