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?

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  • Name

    I am an American citizen married to a French citizen, Because of DOMA, I had to go into exile in France in 2009. I left a good paying job, I sold my house during the real estate crisis, left my aging parents, lost my savings, stifled my career and my pension benefits. Otherwise, I would have been separated from my husband who was not allowed to stay with me in my country. We are law abiding citizens and did not want him to stay illegally in the US and break the immigration laws. I cannot work in France and I was very much prejudiced by this law, ruled unconstitutional and discriminatory by the Supreme Court.

    I just sponsored my husband for a green card with the USCIS. Now I think it would be right to allow my husband to come with me to the US with a non immigrant visa and follow the procedure in the USA to get a green card. I need to work in the US in my field of competence, to provide for my pension (the longer I stay out, the more difficult it will be) and take care of
    my aging parents.

    We are a stable and mature couple (55 and 56) , have always been together since 2009, and cannot face a long separation. The Consular processing and the K3 visa procedure abroad are extremely lengthy and we feel that the DOMA discrimination we have been suffering for 4 years and my banishment will continue for a long time. It seems very difficult (impossible so far) to get an appointment at the US embassy in Paris to talk about our situation, and we are not certain at all that they would give us a practical and swift way out. There is no doubt in our situation that our marriage is bona fide, for I left everything in the US at a huge financial and emotional cost, to be able to live with my husband.

    I read with interest this in your article.: “It will also give same-sex spouses access to many other immigration benefits, like derivative visas,,,,, These benefits may allow thousands of bi-national same-sex couples to return to the U.S. after having spent years in exile abroad”. We don’t know of a derivative visa possibility ,,,. Is it something that could help us in our situation?

  • Steve

    There is a key issue you left out. What about those couples where the spouse has immigration violations (overstays, crossing illegally, bars of inadmissibility)? Simply having the right to sponsor one’s spouse does not get rid of these violations. They must be waived. And for many of these bars, the waiver can get denied OR there are no waivers at all even available. These bars can last 3, 5, 10 years, or even a lifetime. This is an issue shared by heterosexual couples, but it seems to be totally ignored by the LGBT community.

    • Steve

      Let me add that I am a couple in this situation right now. I have been married to my spouse for 2 years (today is our anniversary). And I can’t do a thing to adjust his status because he has these bars on his record for trying to fix a stolen visa 10 years ago. It is extremely unfair and infuriating that I can’t do a thing to adjust my spouses status or make a case in front of a judge.