Recently the Supreme Court issued its decision in the case of United States v. Windsor, in which it struck down the part of the Defense of Marriage Act (DOMA) that defined marriage as being between a man and a woman. This meant that federal agencies would not recognize same-sex marriages for any immigration purpose. Since the Court’s decision, the immigration service has moved rapidly to allow U.S. citizens to obtain green cards for their spouses, providing hope to an estimated 28,500 bi-national same-sex couples in the United States who might otherwise be separated by our immigration laws.
The fall of DOMA’s definition of marriage has other benefits for same-sex spouses beyond green cards. It will also give same-sex spouses access to many other immigration benefits, like derivative visas for spouses of holders of nonimmigrant visas like H-1B or L visas, hardship waivers for people who have been deported or barred from reentry, eligibility for cancellation of removal, 212(h) hardship waivers of minor offenses, reopening of removal orders, and other considerations reserved for the spouses of U.S. citizens. These benefits may allow thousands of bi-national same-sex couples to return to the U.S. after having spent years in exile abroad or after being separated from their life partners and families.
However, the Court’s decision does not solve all immigration problems for same-sex couples. Same-sex marriage is currently legal in only 13 states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) and the District of Columbia. Although USCIS respects the legality of a marriage based on the place of celebration, if a couple cannot travel to a state or country where they can legally marry, they may be out of luck. Foreign nationals who are in immigration detention in states that do not allow same-sex marriage, who are trapped in countries that persecute homosexuals, or who cannot move to a jurisdiction that allows same sex marriage for any reason, may not be able to marry their U.S. citizen partners and obtain immigration benefits.
Does the repeal of DOMA solve all the problems of same-sex bi-national couples?
How would you address the immigration problems of bi-national couples who cannot get married in certain states or areas of the world?