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 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