Supreme Court Ruling on Defense of Marriage Act Opens up Immigration Options

26 Jun 13

UNITED STATES

Today, the U.S. Supreme Court struck down the Defense of Marriage Act (DOMA) on constitutional grounds. In a 5-4 ruling, with Justice Kennedy serving as the swing vote, the court held that DOMA “is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” As a result of the decision, the federal government may not discriminate against same-sex couples if their marriage is recognized by a state. The ruling by the Supreme Court should enable same-sex couples to immigrate to the U.S. through both family- and employment-based channels. It should also pave the way for same-sex couples to travel more freely to the U.S. on temporary visas.

Under U.S. immigration law, married couples, fiancées and their children may receive immigration benefits depending on the immigration status of their U.S. sponsor. However, in 1996, Congress passed DOMA and defined marriage as a legal union between one man and one woman under federal law. Since then, U.S. Citizenship and Immigration Services (USCIS) has been barred from recognizing same-sex marriages in immigration benefits, even when such marriages were considered valid in another country or U.S. state. The ruling today will enable USCIS to recognize same-sex marriages for purposes of immigration law.

BAL Comment: BAL anticipates that USCIS will place any pending cases on hold until the agency can review the decision and issue guidance to adjudicators. Individuals who may benefit from the ruling should consult with counsel before proceeding with any immigration filing.

The decision by the U.S. Supreme Court also impacts immigration legislation. Senator Leahy (D-VT) had sought to amend the legislation to benefit same-sex couples, but several key Republican senators stated that they would withdraw their support if Senator Leahy’s amendment was included in the bill. Currently, senators are still evaluating the Supreme Court decision and have not spoken publicly on its impact on the immigration legislation. However, it is anticipated that the ruling by the U.S. Supreme Court may remove that contentious issue from the immigration debate.

BAL will continue to monitor the issue and is working with companies and individuals who have an interest in the issue.

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.