Marriage Equality and Full Faith and Credit

I had my first consultation with a same sex couple in a post Defense of Marriage Act (DOMA) world. Without giving away any specific facts, this was a gay couple in a long term relationship living in Virginia seeking immigration advice. I suggested that if they were to get married in the District of Columbia, we could file a visa petition on behalf of the non-citizen spouse. But, there would be one issue that could complicate matters. 

That is, under current Virginia law a same sex marriage performed in a state where it is legal will not be recognized. I warned that USCIS could use that as a reason to deny the petition. That is, while the marriage would be legal where it was performed, it would not be legal in the state of residence. 

In my honest opinion, I don't think this Administration would split hairs like that. To the contrary, given how quickly USCIS approved a visa petition for a married gay couple two days after the Supreme Court decision striking down DOMA, I think this Administration would likely approve a petition involving a DC marriage even if the couple is living in Virginia. Nonetheless, my opinion could be wrong, and thus I had to warn my potential clients up front. 

But this does bring up an interesting issue. The Constitution requires the states to give full faith and credit to the actions and records of another state. Thus, a marriage performed in Ohio, for example, must be recognized in Virginia. 

Still, I believe that some states will stick to their guns, and continue to refuse to recognize same sex marriages until forced to do so by the Supreme Court. I think Virginia and North Carolina are among those states. 

The next round of litigation may be over the full faith and credit clause of the Constitution. In fact, I would not doubt that some organization has already drafted up the Complaint, ready to file for the right case. In the end, I believe that same sex marriages will have to be recognized in all states.  Otherwise, the full faith and credit clause would be meaningless. Virginia may not be required to allow same sex couples to marry within its borders. But eventually, Virginia may be required to recognize a DC same sex marriage as legal. 

By: William J. Kovatch, Jr. 

(703) 837-8832

Info@kovatchimmigrationlaw.com

Confirmed: Same Sex Couples May Obtain Immigration Benefits

The New York Times is reporting that the first green card to a same sex couple was issued on Friday, June 28, 2013.  Julian Marsh, a U.S. citizen from Ft. Lauderdale, Florida, married Traian Popov, who is from Bulgaria and applied for a green card.  Mr. Popov received word that his green card was approved by email, an unusual move which signifies the desire of the Obama Administration to move quickly to come in compliance withe the Supreme Court's decision in United States v. Windsor.

If you are a same sex couple looking to apply for immigration benefits, call me at (703) 837-8832 for an appointment.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Marriage Equality Was Discussed in Crafting Senate Immigration Reform Bill

As I've posted on this blog a few days ago, the Supreme Court's decision in United States v. Windsor removed the last legal impediment to allowing same sex couples to apply for immigration benefits for the foreign born spouse.  The New Yorker reports that this topic was actually discussed during the negotiations of the Senate bill on immigration reform.

According to Ryan Linza, the Democrats in the Gang of Eight wanted to include a provision in the bill which would have given gay and lesbian couples the right to apply for immigration benefits.  The Republican members opposed the measure, with Senators Marco Rubio and Lindsey Graham threatening to withdraw support if the measure were added.

The Supreme Court's decision, however, has apparently made this debate moot.  Because the Federal Government cannot discriminate against those in lawful same sex marriages, that would seem to indicate that immigration benefits must be granted on equal footing.  Indeed, the Washington Blade reports that the Office of Personnel and Management has already laid out a plan to provide Federal benefits for Government employees in same sex marriages.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

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.
(703) 837-8832
info@kovatchimmigrationlaw.com

Link to the Supreme Court's Opinion in United States v. Windsor

The Supreme Court has found provisions of the Defense of Marriage Act to be unconstitutional.  The case is called United States v. Windsor.  You can find the text of the opinion at this link.

The case specifically addresses U.S. estate tax law.  However, I believe that it clears the way for immigration benefits for same sex couples.  This article from the Washington Times agrees with me.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Supreme Court May Rule on Whether Same-Sex Couples Can Enjoy the Same Immigration Benefits as Heterosexual Couples

The U.S. Supreme Court has agreed to hear two cases which could decide whether visas can be granted to foreign-born same-sex spouses.

Both cases involve the issue of same-sex marriages.  One stems from a California case where voters approved a ban to same-sex marriages.  The other is an appeal from a Second Circuit case which held that the Defense of Marriage Act was an unconstitutional violation of the Equal Protection Clause.

The Defense of Marriage Act prohibits the Federal Government from recognizing same-sex marriages for the purposes of federal law.  The Second Circuit case specifically addressed whether the surviving spouse of a legal lesbian marriage could claim the marital deduction in the federal estate tax.  However, because the Second Circuit found the Defense of Marriage Act unconstitutional, it opened the door for same-sex couples to claim other federal benefits reserved for married couples.

One such benefit is the ability to petition for an immigrant visa for a foreign-born spouse.  U.S. citizens and lawful permanent residents may petition for a visa for a foreign-born spouse.  To date, such visas were only available to heterosexual couples, even if the same-sex marriage was legally valid where is was concluded.  With many U.S. states legalizing same-sex marriages, a finding by the Supreme Court that the Defense of Marriage Act is unconstitutional may open the door from numerous same-sex couples to solidify a legal immigration status for a foreign-born spouse.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Video Blog: USCIS Field Office in Fairfax for a Marriage Visa Interview

I was at the Fairfax Field Office of USCIS this morning to attend a marriage visa interview.

Second Circuit Decision on the Defense of Marriage Act May Have Immigration Ramifications

In this link, you will be directed to an article on mine talking in greater detail of the possible immigration consequences of the Second Circuit case of Windsor v. United States.

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
info@kovatchimmigrationlaw.com