DOMA STRUCK DOWN : Can I get a Green Card?
This morning the U.S. Supreme Court handed down a 5-4 decision ruling the Defense of Marriage Act unconstitutional. Justice Kennedy wrote the majority opinion writing that “the federal statute is invalid, for 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.” In addition, the Court dismissed California’s Prop 8 case on jurisdictional grounds, essentially allowing Californians to continue with marriage equality.
These rulings paves the way for thousands of federal benefits to be available to same-sex couples, from California and through other states that allow same-sex marriage. This includes immigration benefits which come under federal law. The U.S. Citizenship and Immigration Services, the federal agency under the Department of Homeland Security, has routinely denied same-sex couples green cards and other immigration benefits on the grounds that DOMA prevented them from recognizing a same sex marriage as valid and a valid marriage is a requirement for marriage-based immigration applications and petitions.
Today, it is unclear if, how and how soon USCIS will begin processing marriage-based applications for same-sex couples. Most likely the Director of USCIS will issue a statement or policy memo regarding the matter. As that may take several days, weeks or even months, some immigration attorneys, myself included, plan to file same-sex marriage adjustment and fiancée visa cases as soon as possible to force USCIS to either approve these cases or give a new reason or “legitimate purpose” for denial. Now that DOMA is unconstitutional, I see no good reason to differentiate my opposite-sex marriage cases with gay marriage cases as long as the marriage is valid in the jurisdiction in which it took place.
For those same-sex couples interested in applying for immigration benefits for their spouses, I urge them to speak with an immigration attorney, as I would for any opposite-sex couple in the same situation. Immigration law and the green card process are quite complicated and these are uncharted grounds.
If you are a U.S. Citizen and your spouse entered the U.S. lawfully on a non-immigrant visa such as a student visa they may be able to apply for adjustment of status to that of a lawful permanent resident. You can find out more information on the adjustment of status process here.