Update: Same-sex Marriage & US Immigration Law

Last Wednesday, 26th June 2013, the US Supreme Court issued a decision (US v. Windsor) that found the Defense of Marriage Act (“DOMA”) violates the Due Process Clause of the Fifth Amendment of the US Constitution. Basically, Congress may create laws as it sees fit but the laws may not deny liberty to Americans on the basis of race, religion or sex. This momentous decision will affect many couples who are in a same-sex marriage in many ways and most significantly will affect their ability to sponsor their spouse for a US spouse visa.

The force of this decision will affect 1000s of US federal regulations including those under the US Immigration & Nationality Act. Before this decision, a US citizen who was married to a same-sex partner was unable to sponsor his or her spouse for an immigrant visa or a person who was married to a US temporary visa would not qualify for a spouse-dependent visa. The reason for this was that DOMA did not recognize a marriage unless it was between a man and a woman. The consequences of DOMA have been catastrophic from some individuals. Some couples have been forced to live apart because they could not or they have been forced to live outside the US away from the support of family and friends because they cannot bring their spouse to the US to live permanently. Or, if a US work visa holder wanted to bring their spouse to the US the spouse may only qualify for a B visitor visa which doesn’t allow the person to work in the US.

The US Citizenship & Immigration Services, the agency within the US government that reviews Spouse Immigrant petition,s will be issuing guidance shortly. The USCIS has been keeping a list of hundreds of Spouse petitions filed by same-sex couples and will deal with these initially. At this point, we are still awaiting guidance on what will be treated as a marriage for purposes of US immigration law.

If you are in a same-sex relationship and need advice on how to sponsor your spouse to live in the US, please email our Principal Lawyer, Janice Flynn at janice@flynnhodkinson.com.