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Defense of Marriage Act and Same-Sex Married Couples and Immigration Implications – The Windsor Supreme Court Decision

On Behalf of | Feb 15, 2018 | News

In February of 2011, Obama proclaimed the Defense of Marriage Act (DOMA), which still remains valid law, to be unconstitutional. DOMA, enacted in 1996, defines marriage as that between “a man and a woman” and it bars the federal government from recognizing same-sex marriages. The problem is that DOMA is still good law and Texas does not recognize same-sex marriages as being legal either.

The president stated that although his administration would continue to enforce the law, he ordered the Justice Department to stop defending DOMA cases in federal courts – a change from the previous two years of his administration.

In March 2011, officials from the U.S. Citizenship and Immigration Services (CIS) announced that the agency temporarily suspended decisions in cases involving same-sex couples. That suspension has been lifted and you can now file if you are same sex spouses.

See as an update the USCIS 2013 Janet Napolitano’s Memo on same-sex I-130 petition filings:

DOMA and Same-Sex Couples

As a path to permanent residency for foreign spouses, U.S. citizens can file for their foreign spouse to obtain a green card, including now same-sex couples. And the recent 2013 Supreme Court Decision involving same-sex marriages in Windsor basically rescinded DOMA making it “Federally” illegal to deny benefits to spouses in same-sex marriages.

However, DOMA still remains valid, and now with the Windsor Supreme Court case, state and federal laws will be enacted to support the findings in that case law.

See the Wikipedia reference on the 2013 Windsor Supreme Court case.

In a high-profile case, the Department of Homeland Security immigration officials cancelled the deportation proceedings of a Venezuelan man who was legally married to a U.S. citizen Connecticut man. Though immigration rights advocates, as well as those in favor of gay marriage, cite this case as signaling a policy shift, and cite the Windsor decision as a policy shift, immigration officials stress that they are not focussed on DOMA but they are focusing now on cases involving those aliens with felonies and serious criminal history.

Congress continues to debate immigration reform and the courts continue to debate the issues surrounding gay marriage. Regardless of whether your case involve same-sex couples, immigration issues that involve family members, fiancés or foreign spouses, as these cases can be complex, it is best to discuss your situation with an experienced immigration lawyer, before making any decision to file an application or a petition on behalf of a family member, with USCIS.