Same-Sex Marriage Now a Basis for U.S. Lawful Permanent Residence (a Green Card)

Supreme Court strikes down Defense of Marriage Act (DOMA), clearing way for binational couples seeking U.S. immigration rights.

By striking down major portions of the federal Defense of Marriage Act (DOMA), in a case called U.S. v. Windsor, the U.S. Supreme Court has removed the one and only obstacle blocking rights to a green card (U.S. lawful permanent residence) or a fiance visa (which leads to a green card) for the fiance or spouse of a same-sex U.S. citizen or permanent resident.

In the words of Justice Kennedy, who wrote the opinion: "No legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."

The Department of Homeland Security (DHS) has issued minimal policy guidance on this, but the bottom line appears to be this: From now on, if you are a noncitizen in a same-sex relationship with a U.S. citizen or permanent resident, everything that you read about the rules for marriage-based visas or green cards should include you, too. And U.S. Citizenship and Immigration Services (USCIS) is already accepting applications.

As with opposite-sex marriages, you'll need to prove that the marriage is legally valid in the state or country where it occurred. Note that a minority of U.S. states currently authorize same-sex marriages, and the Supreme Court decision does not extend same-sex marriage rights to other states. (In fact, it left intact Section 2 of DOMA, which allows states to refuse to recognize same-sex marriages performed in other states.) But immigration law is federal, so if you live in a place that doesn't allow same-sex marriage, there should be nothing to stop you from traveling to another state or country to get married.

Legal arrangements known as domestic partnerships and civil unions may be harder to categorize. We'll most likely have to wait for further guidance on those, state by state and country by country.

As with opposite-sex marriages, you will need to be ready to provide a lot of evidence showing that your marriage is the real thing, not just a sham to get the foreign-born person a green card. Be prepared to document that you are sharing a life, such as in matters of housing, finances, and children.

And as with oppposite-sex marriages, you'll have to come to terms with the fact that you're up against a huge government bureaucracy and a tangled set of laws, which can make actually obtaining the green card you deserve very difficult -- particularly if the noncitizen ntered the U.S. unlawfully.  

If you're in deportation (removal) proceedings, your marriage will now work as a defense, and you can apply for a green card through the immigration court system. Immigration Judges have already begun blocking deportation based on same-sex marriages, as described in this ThinkProgress article. But if you get married after proceedings have begun, your marriage will be given extra scrutiny to make sure it's the real thing.  

Now, let's take a step back and look at what counts as a "marriage" under federal immigration law, without the narrow, "man and woman" definition once set by DOMA. Oddly enough, it's hardly defined at all. Section 101(a)(35) of the Immigration and Nationality Act (I.N.A.) says "The term 'spouse,' 'wife,' or 'husband' does not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated." In other words, the law is focused on making sure proxy marriages, where the couple aren't in the same room for the ceremony, don't give anyone marriage rights.

The U.S. Foreign Affairs Manual says (in 9 FAM 40.1 N1.1), "The underlying principle in determining the validity of the marriage is that the law of the place of marriage celebration controls . . . If the law is complied with and the marriage is recognized, then the marriage is deemed to be valid for immigration purposes. Any prior marriage, of either party, must be legally terminated." Nothing earthshaking there, either.

Is there anything new and different about the legal or procedural path to immigration rights for same-sex couples? Stay tuned -- it usually takes a while for the immigration bureaucracy to figure out the details in and issue clarifications to its officials around the world.

And what if you've already submitted an I-130 visa petition or adjustment of status application based on your same-sex marriage? If you did so after the date when President Obama declared the opinion that DOMA was unconstitutional -- that is, February of 2011 -- USCIS kept track of your application. It has already begun reversing the denials, as described in the New York Times article "Gay Married Man in Florida Is Approved for Green Card."