Update: The U.S. Supreme Court recently overturned the 1996 Defense of Marriage Act, also known as DOMA.

The effect of DOMA on Gay Couples

In 1996, President Bill Clinton signed into law prohibiting the federal recognition of same sex marriage, which is referred to as the Defense of Marriage Act, or DOMA. The consequences were the denial of federal benefits to married gay couples which may be received by heterosexual married couples. Examples of the federal benefits are immigration, social security survivor, tax, insurance benefits among other benefits.

The new Supreme Court decision on DOMA and it’s immediate effect on Gay Couples

On June 26, 2013, the United States Supreme Court struck down DOMA in a 5-4 decision. Shortly after, Secretary of the Department of Homeland Security Janet Napolitano issued a statement stating “effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” On June 28, 2013 USCIS issued an approval on a same sex marriage green card case.

Is the DOMA Ruling going to affect the Comprehensive Reform Bill?

From an Immigration perspective, the DOMA ruling is extremely significant to comprehensive immigration reform bill. On June 27, 2013 the United States Senate passed an Immigration Reform Bill that addresses issues affecting 11 million undocumented persons in the US and a backlogged system for employment immigration. As an Immigration lawyer dealing with the problems of the current immigration system on a daily basis, I have doubts that the senate bill will fix the broken immigration system long term. However, the senate bill is absolutely better than the current law. The next step for immigration reform is for the House of Representatives to either vote on the senate bill or for the House to come up with their own bill that could be voted on and potentially reconciled with the senate bill. The Republicans currently control the House while the Democrats control the Senate. Thus, bi-partisan support will surely be needed for comprehensive immigration reform to be passed. Its important to note that the Senate Bill did not provide for same sex marriage immigration benefits. In other words, the senate bill did not address whether same sex married couples could petition for a marriage green card for a foreign national spouse, or obtain a dependent spouse visa such as an H4 visa (dependent of an H1B visa holder) or an E2 Dependent visa (dependent of an E2 treaty investor visa holder). So we don’t really know the senate’s position on the federal recognition of same sex marriage. I suspect that the Senate (as a majority) is for the federal recognition of same sex marriage since the senate is controlled by the Democrats. But the senate may have suspected that the Supreme Court would rule this way in United State V. Windsor decision and rather than create some potential sticking points in the senate bill they would let the Supreme Court do the work. In any event, the House of Representatives has been vocal on its opposition to the federal recognition of same sex marriage. And its logical to assume that the House would not pass an Immigration bill that would have language recognizing same sex marriage.

The Supreme Court decision eliminates a potentially huge sticking point in the potential passage of Immigration Reform. In essence, from the perspective of many same sex married couples, the DOMA decision creates mini reform. For example, prior to the DOMA decision same sex married couples may have had a legally valid marriage certificate from a country or state that recognizes same sex marriage such as the Netherlands, New York, or Iowa. However, because of the DOMA bill signed by President Clinton same sex married couples would be ineligible for a marriage green card if one of the spouses was a foreign national. But because of the DOMA decision, same sex couples that have a marriage certificate from a jurisdiction that recognizes same sex marriage are now eligible for immigration benefits such as a marriage green card. This clearly benefits same sex married couples but it also benefits potential beneficiaries of immigration reform as its one less very significant issue that could derail the passage of comprehensive immigration reform in both the senate and the House.

If you are a foreign national and in a same sex marriage needing US Immigration benefits, contact the Cipolla Law Group to schedule a consultation to understand your immigration options. Cipolla Law Group is a full service Chicago based immigration law firm with lawyers over 30 years of combined experience.

By Attorney Gerald Cipolla