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DHS Secretary Napolitano Announces Implementation of the Supreme Court Ruling on the Defense of Marriage Act


On July 1, 2013 Secretary Napolitano issued a statement to clarify the Department’s position following last week’s landmark Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. At the direction of President Obama, government agencies are to begin ensuring that benefits for same-sex legally married couples are implemented swiftly and smoothly, and to that end, U.S. Citizenship and Immigration Services (USCIS) has been instructed to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

Secretary Napolitano’s statement follows closely on the heels of USCIS Director Alejandro Mayorkas’ announcement on June 26, 2013 at the AILA National Conference in San Francisco, CA, that the agency will move forward and grant green cards for same sex marriages and reopen previously denied cases on their own motion.

Today, DHS issued a press release on their implementation of this progressive policy affirmatively indicating that a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national can sponsor their spouse for a family-based immigrant visa by filing an I-130 petition.  These petitions will no longer be automatically denied as a result of the same-sex nature of the marriage.  Also verified by the press release was that applicants can file the I-130 petition if married in a U.S. State that recognizes same-sex marriage, but live in a state that does not; however, the release did note that DHS may ultimately have to take the law of the state of residence into account, and will release future guidance.

To view the full DHS press release, please click here.

For more information on the impact of the historic Supreme Court DOMA decision, the immigration benefits it now permits, or to seek consultation or file a petition, please contact our attorneys to discuss.

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