Immigration options suddenly opened up for numerous same-sex couples based on the Supreme Court’s overturning Section 3 of the Defense of Marriage Act (DOMA) in a 5-4 decision on June 26, 2013. The ground-breaking decision in U.S. v. Windsor, held the Defense of Marriage Act’s (DOMA’s) definition of marriage as exclusively opposite-sex to be unconstitutional under the Fifth Amendment. Although the case addressed inheritance law, the federal definition of “spouse” has rocked the U.S. immigration world.
Implementation of changes in immigration law are expected immediately in all relevant departments: the Department of State, which governs visas for individuals outside the U.S.; the Department of Homeland Security (DHS), which governs internal immigration benefits; and the Department of Justice, which oversees the Immigration Courts.
Immigration lawyers are being flooded by inquiries from U.S. citizens who are already married, or plan to marry same-sex partners. Americans are now able to petition for their same-sex spouses, provided the marriage was recognized in the jurisdiction where it took place, whether within or outside the U.S. This will permit the foreign spouse to apply for Lawful Permanent Resident (LPR) status subject to the same limitations as any applicant. Citizens should also be able to file fiancé visas for same-sex fiancés, although those who live in states that do not permit same-sex marriage will need to explain that they plan to marry elsewhere. LPR’s are not permitted to petition for fiancés, but can petition for spouses, subject to a priority date backlog and other restrictions.
In addition to bi-national couples, the ruling also affects same-sex couples in which both are foreigners. Spouses of foreigners with any permanent or temporary status that allows derivative status for a spouse should be able to accompany or follow to join the principal henceforth. This should include students, asylees, refugees, and individuals with employment-related visas.
DHS Secretary Janet Napolitano has issued a statement explaining that she has ordered all immigration officers “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.” Indeed, the first case has already been approved. However, the FAQs released do caution that certain exceptions to this general policy may apply.
Department of State Secretary John Kerry has announced: “To fully implement the requirements and implications of the Court’s decision, we will work with the Department of Justice and other agencies to review all relevant federal statutes as well as the benefits administered by this agency.”The Department of State has, in fact, recognized same-sex relationships prior to Windsor in limited circumstances. Holders of visas working at embassies or for international organizations have been able to obtain derivative visas for same-sex spouses based upon the law of the individual’s nationality, pursuant to international treaties. Also, same-sex spouses of U.S. Foreign Service employees working overseas have been officially granted accompanying family member status pre-Windsor.
While it is unknown what exceptions or issues may arise, some problems are already foreseeable. While the federal definition of “spouse” for immigration purposes is based on the place in which the marriage took place, each state has its own laws for performing and dissolving marriages. Each state’s marriages should be afforded “full faith and credit” by the other states. Maryland has hosted numerous marriages of residents of jurisdictions which do not, including our close neighbor Virginia. This raises the question of how a couple that got married in Maryland, but resides elsewhere, will divorce, should the need arise. While Maryland has no residence requirement for performing marriages, it does for performing divorces.
Another issue is how “domestic partnerships” will be treated, whether domestic or foreign. The specifics will likely depend on whether “domestic partnership” confers all rights equivalent to marriage, such as inheritance, division of property, and the like.
It is problematic that couples will likely have unequal access to spousal benefits, based on state of residence. This is because state and federal recognition of “spouses” is not necessarily determined by the place the marriage was performed.
It would be helpful for family law practitioners to advocate for changing the requirements for divorce in Maryland. The District of Columbia, for example, permits those who were married there who cannot divorce in their state of residence to divorce in D.C., should such be necessary. Maryland is among the first states recognizing same-sex marriages, and its divorce law should reflect the potential needs of those who have chosen to say their vows in the Old Line State.
Same-sex couples are advised to consult with experienced attorneys to discuss issues raised by Windsor.
Toni Maschler is a partner at Bromberg, Kohler Maya & Maschler, a boutique immigration firm. She may be reached at firstname.lastname@example.org.