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Immigrants in same-sex relationship to be impacted by DOMA ruling

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We have blogged before about the protection immigrant spouses are afforded in the United States. For example, if an individual is a citizen and is married, there are avenues for enabling the immigrant spouse to stay in the country through family immigration privileges. Similarly, when a citizen is looking to marry an immigrant, the citizen can secure a visa to bring their fiancé to the country to marry.

However, these family immigration privileges only afford protection to heterosexual couples at present. This could change depending on the outcome of the Supreme Court hearing challenging the Defense of Marriage Act, which states that under federal law a marriage must be between a man and a woman. Defining marriage as such under the federal law means that same-sex couples are denied federal benefits. This denial of federal benefits holds true for same-sex couples that marry in states that recognize same-sex marriage because the federal law trumps state law.

The Supreme Court challenge is not ruling on same-sex marriage, but rather the constitutionality of treating married couples differently depending on whether they are same-sex or opposite-sex. One of the federal benefits that would be impacted under this ruling is the ability of a spouse to obtain a green card for their same-sex spouse, which under current law cannot happen.

Department of Homeland Security secretary says that when immigration officials are considering deporting someone, they do presently consider if that individual is a same-sex spouse. However, that is still not the same thing as granting that person a green card, and the ability to remain in the country without fear. The outcome of this case will have a very significant impact on individuals that are in a relationship with a same-sex partner that is an immigrant.

Source: ABC News, "DOMA Ruling Could Mean Green Cards for Gay Immigrants," Emily Deruy, March 27, 2013.

  • Our firm has experience handling cases related to matters detailed above in the Washington D.C. area. For more information, please refer to our family-based green cards page.

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