On Jul 02 2013 by Klasko Immigration

USCIS Opens the Doors to the Awarding of Same-Sex Benefits

Throughout virtually their entire history since codification, the U.S. immigration laws have discriminated against – and at times been outright hostile to – gay and lesbian prospective immigrants.

As described by the seminal 1963 Supreme Court case Rosenberg v. Fleuti, the Immigration and Nationality Act treated homosexuals as inadmissible for having been “afflicted with psychopathic personality.”  Two decades later, the 9th Circuit in Adams v. Howerton held that the INA’s definition of “spouse” only referred to opposite-sex couples. In 1996, this holding was codified nationwide with the enactment of the Defense of Marriage Act (“DOMA”), which, for purposes of administering any federal benefit, defined the word “marriage” as only a legal union between one man and one woman, and the word “spouse” as only a person of the opposite sex who is a husband or a wife.

The end result of this interpretation of the INA was that same-sex spouses of petitioners and of principal beneficiaries were forced to acquire separate routes to immigrant and nonimmigrant status. For instance, same-sex spouses of U.S. citizens and permanent residents had to look to other types of family or employment visas in order to immigrate to the U.S. Derivative same-sex spouse beneficiaries, be they seeking either nonimmigrant or immigrant visas, had no dependent route to the U.S. other than those lucky enough to qualify for a visitor’s visa under sparingly used Department of State guidance allotting for B-2 visas for such spouses. This limited route to admission to the U.S. severely limited a same-sex spouse’s period of stay, as well as his or her permissible activities once admitted. Such spouses had no work authorization, nor could they enroll in educational programs.

To be sure, the benefits accorded to same-sex spouses fell well short compared to their opposite-sex counterparts. Such disparate treatment was turned on its head last week with the Supreme Court’s international-headline grabbing ruling in United States v. Windsor, which held that DOMA is unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment. Under the Windsor ruling, DOMA’s definitions of “marriage” and “spouse” were each invalidated, changing the meaning of 1000+ federal statutes and countless more regulations.

Once announced, practitioners around the country wondered how and when the Windsor holding would affect the adjudication of same-sex immigration benefits. Almost immediately, news broke that the first same-sex couple in U.S. history was awarded an I-130 approval and an immediate relative Green Card. And just yesterday, DHS Secretary Janet Napolitano provided a statement announcing that U.S. Citizenship and Immigration Services (USCIS) is “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.”

Under Secretary Napolitano’s initial guidance, USCIS will honor same-sex marriages where the jurisdiction that celebrated the marriage honors such marriages. Marriages entered in foreign or domestic jurisdictions allowing for gay marriage (such as New York) are eligible for immigration benefits even though the couple may reside in a jurisdiction (such as Pennsylvania) where same-sex marriages are without legal effect at the state law level. In other words, provided that the same-sex marriage was valid under “law of the place where the marriage took place”, it appears that USCIS will recognize that marriage even if the jurisdiction where the couple now resides considers that marriage to be void.

Presumably, this guidance will also extend to derivative immigrant and nonimmigrant classifications as well. Thus, nonimmigrant visas such as H-4, L-2, O-3, and derivative employment-based visas should also inure to the benefit of same-sex couples if those couples entered into their marriages in jurisdictions which recognize their marital union. To be sure, Windsor and DHS’ implementation of that holding recognizes a sea change in the adjudication of benefits for foreign same-sex spouses under the INA.

If you have any questions regarding the Windsor case as applied to immigration-related benefits, contact your Klasko Law attorney for specific guidance.