Supreme Court Strikes Down DOMA; Gay and Lesbian Married Couples to Receive Equal Treatment under Immigration Law

Today the U.S. Supreme Court in United States v. Windsor took a giant step forward in defense of the human rights of gays and lesbians, striking down the federal government’s marriage recognition restrictions under the Defense of Marriage Act (DOMA). Married same sex couples (once DHS and the Justice Department digest the decision) will soon be treated equally to heterosexual married couples under U.S. immigration law.

Under DOMA Section 3, only marriages by heterosexual couples could receive federal recognition, leading to the cruel separation of same-sex married couples. Same sex spouses were simply forbidden to file immigrant visa petitions or fiancé petitions for one another. Nor could same-sex married couples be treated as “qualifying relatives” for hardship waivers for certain grounds of inadmissibility of for humanitarian cancellation of removal applications.

Now this unequal treatment is finally about to end. As set forth by Justice Kennedy,

DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects . . . and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

With DOMA’s constitutional repeal, we expect DHS and the Immigration Courts to soon implement updated policies treating same-sex marriage spouses as equal to heterosexual spouses. Our immigration law firm has closely tracked this critical issue and is ready to assist gay and lesbian immigrant families in San Jose and throughout the San Francisco Bay Area reunite and remain in the United States.

UPDATE: At the June 27, 2013 American Immigration Lawyers Association Annual Conference in San Francisco, it was announced that Secretary of State John Kerry has instructed consular posts and NVC to provide equal treatment to same sex married couples. It was also announced by USCIS Director Alejandro Mayorkas that immigrant visa petitions filed by same sex spouses would likewise receive equal treatment.