Wednesday, June 26, 2013

Supreme Court Decision May Bring Changes to Immigration Law

Today, in the case of United States v. Windsor, the U.S. Supreme Court affirmed the holding of the U.S. Court of Appeals for the Second Circuit which found the Defense of Marriage Act to be unconstitutional.  The Defense of Marriage Act, or DOMA, provided that the Federal Government could not recognize same sex marriages as legal for the purposes of Federal law.

The case itself involved a lesbian couple, who at the time could not marry in their home state of New York (this has since changed as New York legalized same sex marriages).  The couple went to Ontario, Canada, where same sex marriage was legal, and wed.  The couple moved back to New York.  When one spouse died, the surviving spouse sought to take advantage of the marital deduction under the Federal Estate Tax.  This was prohibited under DOMA.  The surviving spouse sued, and won before the U.S. Court of Appeals for the Second Circuit.

In affirming the Second Circuit's decision, the Supreme Court first noted that the definition of who can get married has been an issue left to the several states.  When a state has chosen to recognize same sex marriages as legal, the effect of DOMA to prohibit Federal benefits to those married couples violated the Equal Protection clause of the U.S. Constitution.

The decision itself involves Federal Estate Tax law.  However, under the same logic, there is no reason why it cannot also be applied to U.S. immigration law. 

U.S. immigration law itself does not define "marriage" or "spouse."  However, several immigration benefits are open due to marriage.  Up until now, DOMA has been the main impediment to having the Federal Government grant those benefits to a foreign born spouse of a same sex marriage.

For example, the foreign born spouse of a U.S. citizen is considered to be an "immediate relative," and as such is entitled to an immigrant visa without waiting in line under the preference system.  With DOMA being found unconstitutional, a U.S. citizen should be able to file an I-130 visa petition on behalf of a same sex spouse, so long as the marriage itself is legal.

Also, in many instances, when a person is granted a visa, that person can obtain a visa for certain derivative beneficiaries.  A specialty worker with an H-1B visa, for example, can have a spouse receive a temporary visa as well.  Under the Windsor decision, that H-1B visa holder should be able to apply for a derivative visa for a same sex spouse so long as the marriage is legal.

The Obama Administration is very likely the best administration to test this theory.  In September of last year, the Administration announced that long-term same sex partners would be considered U.S. relatives for the purposes of granting some form of discretionary relief, such as deferred action or prosecutorial discretion.  With such a track record, it seems likely that the Administration would now look favorably on a visa petition filed by a U.S. citizen on behalf of a same sex spouse.

By:  William J. Kovatch, Jr.
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