Maryland Bar Bulletin
Publications : Bar Bulletin : August 2010

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 BAR BULLETIN FOCUS: IMMIGRATION LAW

On February 23, 2010, Maryland’s Attorney General issued an opinion, “Marriage – Whether Out-of-State Same-Sex Marriage That is Valid in the State of Celebration May Be Recognized in Maryland,” stating that until the legislature or courts decide otherwise, Maryland should recognize a same-sex marriage that is valid in the jurisdiction in which it was celebrated. The Attorney General’s opinion applies to marriages performed in the District of Columbia and the several states that authorize same-sex marriage, and also applies to marriages performed in foreign countries that authorize same-sex marriage.

For a Maryland resident wishing to sponsor a same-sex spouse for U.S. permanent resident status (a green card), and for a foreign married couple seeking to temporarily or permanently reside in Maryland, the question thus becomes: Does the fact that Maryland, my state of residence, recognizes my same-sex marriage mean that U.S. Citizenship and Immigration Services (USCIS) will recognize the marriage for immigration purposes?

The answer rests in our constitutional system of government and a law passed during the Clinton administration entitled the Defense of Marriage Act (DOMA). Based upon the U.S. Constitution and various acts of Congress, it is well-established that the federal government has preeminent authority to regulate immigration matters. The Immigration and Nationality Act (INA) is the federal law that governs immigration in the United States.

A well-known provision of the INA provides that the spouse of a U.S. citizen is eligible to become a U.S. permanent resident. The INA also provides that the spouse of an individual that is temporarily or permanently immigrating to the United States is eligible to receive derivative U.S. immigration status. For example, the spouse of a physician entering the United States on an H-1B professional work visa is entitled to a derivative H-4 visa. Likewise, if a foreign national becomes a U.S. permanent resident, that individual’s spouse may also become a permanent resident at the same time.

DOMA controls the issue of whether a spouse in a same-sex marriage may receive U.S. immigration benefits on the basis of that marriage. Enacted in 1996, DOMA applies in determining the meaning of any federal law or regulation, and defines marriage as “only a legal union between one man and one woman as husband and wife.” Similarly, it provides that the word “spouse” refers only to a person of the opposite sex who is a husband or wife.

As required under DOMA, USCIS will not approve an application for immigration benefits that is based upon an individual’s status as a spouse in a same-sex marriage. Although the INA provides immigration benefits for spouses, DOMA mandates that same-sex spouses are not eligible for immigration benefits. Even if a same-sex couple has married legally in a country or state that sanctions same-sex marriage and will reside in Maryland, DOMA prevents that marriage from being legally recognized for the purposes of federal immigration law. Therefore, a Maryland resident may not sponsor a same-sex spouse to be a U.S. permanent resident. Similarly, the same-sex spouse of a physician coming to Maryland to work on an H-1B visa is not eligible for a derivative H-4 visa, and must find an independent basis to legally reside in the United States.

DOMA is currently under attack on two fronts. First, there are lawsuits alleging that DOMA violates the U.S. Constitution. At least one case has found a receptive court. In July 2010, the U.S. District Court for the District of Massachusetts ruled that Section 3 of DOMA (the section discussed in this article) is unconstitutional. The case was filed by various same-sex couples who were legally married in Massachusetts, and who claimed that DOMA’s prohibition on extending federal benefits to them – such as spousal Social Security benefits – violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment. In ruling in favor of the plaintiffs, the court noted that the federal definitions of “marriage” and “spouse” set forth in DOMA are incorporated into at least 1,138 different federal laws. Specifically, although not at issue in the case, the court highlighted that under DOMA, U.S. citizens in same-sex marriages do not enjoy the right held by other citizens to sponsor their spouses for U.S. immigration benefits.

Second, there is a movement to repeal DOMA. Former President Bill Clinton and former Congressman Bob Barr, both of whom led the push for DOMA in 1996, now publically favor its repeal. In September 2009, the Respect for Marriage Act of 2009, which seeks to repeal DOMA, was introduced in the House of Representatives. The bill currently has 113 cosponsors, and has resided in a House subcommittee since October 2009.

Until further notice, Maryland’s recognition of a validly performed same-sex marriage does not obligate USCIS to recognize that marriage under federal immigration law.

Michael F. Smith is an attorney with McChesney & Dale, P.C., in Bowie, Maryland. He focuses his practice on immigration and employee benefits.  


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Publications : Bar Bulletin: August 2010

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