Maryland Bar Bulletin
Publications : Bar Bulletin : August 2013

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Married, But Not United: Immigration Law Pre-Windsor

Family unity has long dominated the landscape of U.S. immigration law and policy. However, Lesbian, Gay, Bisexual, and Transgendered (LGBT) families have been notably absent from this policy. Per the Defense of Marriage Act, a federal law defining marriage as only between one man and one woman, same-sex married couples were not treated on par with heterosexual married couples. This law excluded same-sex couples from all federal benefits, including immigration benefits. For instance, same-sex spouses could not sponsor each other for green cards. In addition, many same-sex married partners often resorted to securing tourist visas, or other temporary visas, in order to remain in the country. Individuals using this option were prevented from expressing an intention to remain in the U.S. permanently under the law.  Consequently, many bi-national LGBT married couples lived in constant fear of separation or deportation. That changed with the U.S. Supreme Court’s ruling in United States v. Windsor, striking down Section 3 of the Defense of Marriage Act related to federal benefits. The ruling means that same-sex married couples can now access over 1,100 federal benefits, including immigration benefits. 

Unity and Parity: Application of U.S. Immigration Laws to Same-Sex Married Couples

Post-Windsor, same-sex married couples are eligible for the same immigration benefits afforded to heterosexual married couples. This includes both the privileges and the penalties of U.S. immigration law and policy. For instance, in deference to married couples, U.S. law has allowed an exception for the spouses of U.S. citizens to change their status from unlawful to lawful, while still residing within the U.S. This is a privilege not afforded to all immigrants seeking legalization. Spousal visas also enjoy exemption from visa quotas. In addition, the spouses of U.S. citizens have a shorter path to legal status. They have only a three-year wait for applying for citizenship after receiving a green card. But, the potential penalties and pitfalls are the same as well. This includes enduring close scrutiny for potential fraud and undergoing the same  screening processes. 

The Honeymoon Stage

The Department of Homeland Security, through the U.S. Citizenship and Immigration Services, began issuing green cards to same-sex married couples shortly following the Windsor ruling. Working in conjunction with other agencies, such as the Department of Justice, the Department of Homeland Security is crafting federal guidance and policy to clarify immigration rules and procedures.  Of course, determinations, especially in complex cases, are made on a case-by-case basis.

The Honeymoon is Over: What’s Next?

The day after the Windsor ruling, the U.S. Senate passed historic bipartisan immigration reform legislation, the Border Security, Economic Opportunity, and Immigration Modernization Act.  Notably absent from the legislation was an amendment by Senate Judiciary Chairman Patrick Leahy, based upon his bill, the Uniting American Families Act (UAFA). Chairman Leahy’s amendment would have given immigration parity to same-sex married spouses. The amendment was later withdrawn during the Judiciary Committee’s consideration of the bill and did not make it to the Senate floor for a vote. While the Windsor ruling achieves the immigration parity Chairman Leahy’s bill envisioned, the ruling’s full implications are still open for interpretation. For instance, areas left to the discretion of federal agencies may require explicit statutory language, regulations, and guidance.

In addition, there is still some ambiguity about the treatment of legally-married same-sex couples currently residing in states that do not recognize same-sex marriage. Specifically, Section 2 of the Defense of Marriage Act, allowing states to refuse to recognize same-sex marriage, remains intact. A bill by U.S. Senator Dianne Feinstein, the Respect for Marriage Act, would repeal DOMA in its entirety, removing this ambiguity for same-sex married couples and expanding parity beyond the immigration arena.

Federal agencies are left with the administrative task of fully-implementing the law. Shortly following the Windsor ruling, several U.S. senators wrote a letter to Homeland Security Secretary Janet Napolitano urging quick administrative implementation action. Among other requests, the senators urged the appointment of an independent ombudsman to help the public navigate the immigration law changes and resolve any complaints. 

It’s too early to know exactly how the U.S. immigration landscape will change in a post-Windsor world. Legalizing same-sex marriage is still up to individual states, and it remains a controversial issue. But, the marriage of unity and parity in immigration treatment is now the law.

Janel George currently serves as Legislative Counsel for a member of Congress, handling health care, education, and judiciary issues.

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Publications : Bar Bulletin : August 2013

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