Friday, October 19, 2012

Could Same-Sex Couples Eventually Apply for Visas?

A decision by the U.S. Court of Appeals for the Second Circuit may open the door to permit same-sex couples to apply for visas.

The case is Windsor v. United States. It involves the application of the federal estate tax to the estate of a woman who had married her same-sex partner in Canada.  The couple lived in New York, where Thea Clara Spayer died.  Her same-sex spouse, Edith Windsor, inherited her property, and claimed the marital deduction when calculating the estate tax due.  The deduction was disallowed, citing the Defense of Marriage Act.

The Defense of Marriage Act limits the Federal Government to recognizing only a marriage between one mane and one woman when applying all federal law.  The Second Circuit found this to be in violation of the Equal Protection Clause of the U.S. Constitution.

While the decision involves the federal estate tax, the Defense of Marriage Act has also been applied to prevent a U.S. citizen from submitting a visa petition for a foreign-born same-sex spouse.  If the decision stands, it could open the door for same-sex couples to apply for immigration benefits previously denied.

The jurisdiction of the Second Circuit is limited to Connecticut, New York and Vermont.  But, there could be an incentive for same-sex couples to move to one of those states now, and file a visa petition in order to force the Federal Government to follow the decision in the immigration context.

The text of the decision can be found here.

An article from the New York Times on the decision can be found here.

By:  William J. Kovatch, Jr.
(703) 837-8832

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