On June 26, 2013, the U.S. Supreme Court struck down section 3 of the Defense of Marriage Act
June 28, 2013
SUPREME COURT OVERTURNS DOMA: HOW THE DECISION WILL AFFECT
IMMIGRATION BENEFITS TO SAME‐SEX COUPLES
On June 26, 2013, the U.S. Supreme Court struck down section 3 of the Defense of
Marriage Act (DOMA) as unconstitutional. Section 3 previously limited the federal definition of
marriage to be a legal union between a man and a woman. As a result, legally married same‐sex
couples will soon be eligible to apply for the same Federal benefits that have been available to
opposite‐sex married couples, including immigration benefits. While the ruling removes a
barrier to immigration benefits for same‐sex couples, only those same‐sex couples whose
marriage is legally recognized by the state of celebration will be eligible for these benefits.
New guidance is expected from the Department of Justice (DOJ) and U.S. Citizenship and
Immigration Services (CIS) regarding the Supreme Court’s decision, however, it is anticipated
that legally married same sex couples will be eligible for the same immigration benefits as
opposite‐sex married couples including:
Filing an immigrant visa petition for a same‐sex spouse.
Obtaining a derivative nonimmigrant visa for a same‐sex spouse(i.e. H‐4, L‐2, TD,
Eligibility as a derivative family member for family and employment based
permanent residence processes.
Claiming a same‐sex spouse as a qualifying relative when applying for
Cancellation of Removal or Suspension of Deportation, waivers of inadmissibility,
or asylum status.
Eligibility for protection under the Violence Against Women Act, if the abuse
occurred at the hands of the same‐sex spouse.
In addition to these benefits going forward, same‐sex spouses who have had their I‐
130’s previously denied may be allowed to file a request to CIS to have their cases reopened in
light of the ruling.
In sum, this landmark decision paves the way for same‐sex couples to obtain the same
immigration benefits as have always been provided to opposite‐sex couples. Once the DOJ and
CIS provide guidance on the Court’s decision, we can expect to receive similar direction from
other government entities, such as the US Department of State. If you have any questions
regarding these changes, please contact your FosterQuan immigration attorney for more
Before the Supreme Court acted, roughly 36,000 American citizens were specifically
barred from applying for green cards for their same‐sex spouses. But following the ruling,
Secretary of Homeland Security Janet Napolitano confirmed that any legally valid marriage of a
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U.S. citizen would be recognized for immigration benefits. If immigration reform passes
Congress, same‐sex couples will automatically be covered by the new law without any extra
debate or amendments.
As always, FosterQuan will continue to monitor regulations and procedures and will
provide additional information in future Immigration Updates©, and on our firm’s website at
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