In late June 2013, the Supreme Court is expected to release a decision deciding whether the Defense of Marriage Act (“DOMA”) is constitutional.  This decision will have important effects for same sex couples in the United States, including binational couples whose marriages are currently not recognized under federal law.  Below is a brief explanation of how the upcoming decision could affect the immigration status of binational LGBT couples. 

 

1. - What is DOMA?
   

    DOMA stands for the Defense of Marriage Act, which was signed into law by Bill Clinton in 1996.  Section 3 of DOMA defines marriage as a legal union between a man and a woman for federal purposes, therefore restricting federal marriage benefits to opposite sex couples.  Additionally, while states traditionally must recognize marriages performed in other states, Section 2 of DOMA changed this requirement to apply only to opposite sex couples.  The impact of DOMA has been felt very heavily by same sex couples who are not able to receive tax, insurance or Social Security benefits, just to name a few. 

    DOMA has also had a hugely negative impact on the immigration benefits of same sex couples where one member of the couple is not a citizen of the United States.   Opposite sex couples are able to petition for permanent resident status for their spouses, but because DOMA prohibits federal recognition of same sex marriages and because immigration law is controlled exclusively by the federal government, same sex couples are not afforded this same benefit. 

-    What is the Current Status of DOMA?

    On March 27, 2012, oral arguments were heard before the Supreme Court on whether to uphold or strike down Section 3 of DOMA.  A Supreme Court decision on DOMA’s fate is expected in the last weeks of June, but no exact date has been announced yet.  It is likely the decision will be announced towards the end of the Supreme Court’s term on June 24th or June 27th. We will be closely monitoring any announcements regarding DOMA, and will update our website the minute we learn the date of the Supreme Court’s decision. 

1. -What Should We Expect from the Supreme Court
   

    Until the Supreme Court formally announces its decision, there is no certainty as to whether DOMA will be struck down or upheld.  However, during the oral arguments, the Supreme Court Justices may have given an indication of which way they will rule.  Most legal analysis of the oral argument seems to be optimistic that DOMA will be struck down.  Of the nine Supreme Court Justices, four of the politically liberal justices (Sotomayor, Ginsberg, Kagan and Breyer) are almost certain to strike down DOMA.  Four of the politically conservative justices (Alito, Thomas, Scalia and Roberts) may be in favor of upholding DOMA.  Justice Kennedy could be the deciding vote, and his statements during the oral argument seem to indicate he could be in favor of striking down DOMA.  Once again, however, there is no guarantee of DOMA’s demise until the official Supreme Court ruling later in June. 

-    What Will Happen if DOMA is Struck Down?

    If the Court invalidates DOMA, same sex U.S. citizen spouses can petition for permanent resident status for their foreign national spouses immediately.  There may be a twenty-five day stay of the decision taking effect, but this should not affect petitioning for permanent resident status.  If you are not yet married to your partner, and you currently live in a state that allows same sex marriage, you must marry your partner before being able to apply for his or her permanent resident status. 

    If your partner does not currently live in the United States, you may bring your partner over on a fiance visa, marry within 90 days, and then apply for permanent resident status.  If you were already married to your spouse in a country that recognizes same sex marriage and your foreign national spouse still resides in that country, you may petition for your spouse through a U.S. consulate while he or she remains in their country.  If you are not a U.S. citizen, but instead are a lawful permanent resident, you may still apply for permanent resident status for your foreign national spouse, but you will not be able to do so immediately.  Please contact us for additional information. 

    Furthermore, if the Court invalidates DOMA, same sex couples who do not currently live in a state allowing same sex marriage will be able to marry in a state that does allow such marriage, provided all other state requirements for a valid marriage are met.  Currently there are twelve states (CT, DE, IA, MA, MD, ME, MN, NH, NY, RI, VT, WA) and the District of Columbia with marriage equality, none of which have residency requirements.,   Once you are married, you may then apply for permanent resident status. 

-    What Can I Do To Prepare if DOMA is Struck     Down?

    If you wish to petition for permanent resident status for your same sex partner, you must first be married.  If you are not already married, and live in a state where gay marriage is legal, consider doing so soon because the green card process may go more quickly if you already have a marriage certificate to submit with your green card application. 

    Additionally, you should begin by gathering documentation demonstrating your cohabitation, any co-mingling of assets, any joint ownership of property, and any other relevant evidence of your marital union.  Such evidence could also include affidavits filed by people with knowledge of your marriage.  The person who is petitioning for his or her same sex partner (the U.S. citizen) should have proof of his or her citizenship ready to submit.  Proof of citizenship could be shown through a birth certificate or a passport, for example. 

    -    How Long Will it Take for My Spouse to Receive a Green Card?

    After you file for a green card, the government must process your form before awarding your spouse a conditional green card.  In addition, you will be called for an interview in which an immigration official will ask you questions to verify that you are in a bona fide marriage.  Processing times vary, and if DOMA is struck down, there could be an influx of green card applications which may further add to wait times.  Generally speaking, it can take six months to a year to receive a conditional green card once your application has been filed, although the current processing time is only five months.  Updated processing times can be found at this link. 

    After receiving a conditional green card (which normally takes place a few weeks after a successful interview), you must be married for two years and file an additional form in order to remove your spouse’s “conditional” status.  You must file this form within 90 days of the two year anniversary of the conditional grant of status.  After that form is approved, your spouse will have permanent resident status in the United States.

                                        * * *

Kate Lenahan is currently working with several binational couples to prepare them for the potential repeal of DOMA.  She began to focus on  LGBT immigration issues when she was a Legal Fellow at Immigration Equality, a non-profit organization that is dedicated to providing legal services to LGBT immigrants.   

Copyright 2013 Brophy & Lenahan P.C. 

All rights reserved.

    The article above is intended to provide general information.  It is not legal advice and should not be used as legal advice.  For legal advice on your particular issues, you should consult with an immigration attorney who can familiarize himself or herself with your specific issues.