Both the federal government and individual states have the right to pass laws, which are sometimes in conflict with each other, making the intersection of marriage equality and immigration a complex one.
In 1982, in Adams v. Howerton, the United States Court of Appeals for the 9th Circuit decided that the term spouse, in the Immigration and Nationality Act, referred to a partnership between a man and a woman.
The Defense of Marriage Act, commonly referred to as DOMA, was passed in 1996. Section two of DOMA said that individual states did not have to acknowledge the marriage of a same-sex couple performed in other states. Additionally, Section three of DOMA defined marriage as being between a man and a woman for purposes of federal laws and programs.
States, on the other hand, have the right to legislate how, when, and under what terms its citizens can get married. On May 17, 2004, Massachusetts became the first U.S. state to legalize same-sex marriage; however, other states were not obligated to recognize those marriages. Between 2004 and 2013, many other states passed laws legalizing same-sex marriage.
Implications on Immigration: Section 3 of DOMA
The impact of Section three of DOMA on immigration law was that even if a coupe was lawfully married in Massachusetts, that person could not file an immigration petition for their same-sex spouse or step-children, as the union did not meet the definition of marriage under federal law. It also meant that same-sex partners could not accompany their spouses on employment-based visas to the United States. Additionally, same-sex couples with a partner in removal proceedings were left with no way to help their spouse.
United States v. Windsor
On June 26, 2013, in the United States v. Windsor, the United States Supreme Court found Section three of DOMA unconstitutional resulting in the federal government recognizing the marriages of same-sex couples.
In the wake of U.S. v. Windsor, the United States Citizenship and Immigration Service, the Immigration Court, and other DHS entities began treating same-sex married couples as being married for immigration purposes. Similarly, in the wake of Windsor, spouses were able to apply for immigration benefits on behalf of their transgender spouses.
Challenges that Same Couples May Face
In proving that you have a bona fide marriage, same-sex couples may face some hurdles if they’ve kept their relationships secret out of fear of discrimination or for other reasons. For example, in petitioning for a spouse, it is helpful to include support letters from your family members and your spouse’s family members. If your family members are unaware or unsupportive of your relationship, it may be challenging to obtain a support letter. Similarly, if you’ve kept your relationship hidden from your landlord or employer some of the more typical evidence may be unavailable (example: joint lease or employment benefits). However, there are ways to circumvent these issues.
Additionally, for immigration purposes, your marriage must be valid in the place where it took place. For same-sex couples, this means that they may be unable to marry in the fiancé’s country of origin. In this case, it would be better to use the fiancé visa to bring your fiancé to the United States and marry.
Marriagevs. Civil Union
Lastly, to confer immigration benefits on your spouse, you must be married. Civil Unions are insufficient for immigration purposes.
If you would like information about immigration benefits for same-sex couples, please contact an immigration attorney who is trustworthy and knowledgeable! Our attorneys at Landerholm Immigration, APC, are experienced in same-sex immigration cases. Please feel free to call us at 510-488-1020 to see how we can help!