

On June 26, 2013, the U.S. Supreme Court struck down a major provision of the Defense of Marriage Act (DOMA) that, until now, had denied federal benefits to legally married same-sex couples.

United States v. Windsor rules that DOMA is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits and hence violates the Constitution. This means that now all married couples will be treated equally and fairly in the administration of U.S. immigration laws.

The decision in the DOMA case gives married gay couples all the federal benefits and rights that straight married couples are entitled to. This could equate to citizenship for an estimated 36,000 couples, according to Immigration Equality, a gay rights and immigration advocacy group. American citizens and green card holders can submit a petition to the U.S. Citizenship and Immigration Services for an international spouse to receive a green card. Furthermore, a green card holder who has lived in the U.S. and been married to an American for at least three years can apply for naturalization if other conditions are met.

Currently 13 states – California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington—as well as the District of Columbia—allow same-sex marriage. It’s fair to expect that this decision will expand the ability of same-sex married couples resident in these states to effectively apply for immigration benefits for foreign national spouses. Expect to see Adjustment of Status filings for Immediate Relatives (ie Spouses), N-400 Naturalization filings, Consulate-based I-130 filings for spouses overseas, etc.

It is too early to know how or when this decision will begin to impact the adjudication of benefits by U.S. Consulates and USCIS. Immigration practitioners are now awaiting practical guidance on implementation of this decision. Our firm will publish a more detailed Immigration Alert as soon as more information is available. But for now, we applaud the decision as the Supreme Court’s decision opens the door to immigration and equality for everybody.