DOMA – Update on the Implementation of the Supreme Court’s Decision
As we continue to follow the historic U.S. Supreme Court decision that struck down Section 3 of the Defense of Marriage Act (DOMA) and the impact of that decision on U.S. immigration, we wanted to advise our clients of recent guidance issued by the United States Citizenship and Immigration Services (USCIS) and by the U.S. Department of State (DOS) on this topic.
The USCIS recently released updated FAQs — http://www.uscis.gov/family/same-sex-marriages.
We would like to highlight the following Q&A present within the USCIS FAQs which indicates that in addition to immigrant filings for same-sex spouses, nonimmigrant dependent filings (e.g., H-4, L-2, etc.) are permissible for same-sex spouses as well:
Q6. What about immigration benefits other than for immediate relatives, family-preference immigrants, and fiancés or fiancées? In cases where the immigration laws condition the benefit on the existence of a “marriage” or on one’s status as a “spouse,” will same-sex marriages qualify as marriages for purposes of these benefits?
A6. Yes. Under the U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms “marriage” or “spouse.” Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum. In all of these cases, a same-sex marriage will be treated exactly the same as an opposite-sex marriage.
The DOS released guidance indicating that U.S. embassies and consulates may now accept nonimmigrant and immigrant visa applications filed on behalf of same-sex spouses — http://travel.state.gov/content/dam/visas/policy_updates/Next_Steps_On_DOMA_Guidance_For_Posts_August_2013.pdf
We are still waiting for guidance from the United States Customs and Border Protection (CBP) on how the U.S. Supreme Court decision striking down Section 3 of DOMA will be implemented with regard to applications for admission to the U.S. CBP has indicated that it is awaiting internal guidance from its legal office and from the United States Department of Justice (DOJ) before issuing any guidance to the field and a definitive timeframe on when the guidance will be issued has not been provided. Until this guidance is issued to the field there is concern that the CBP may not admit a same-sex spouse in a dependent visa category.
We will continue to monitor this topic and its impact on U.S. immigration very closely and will provide additional information as it is received.
If you or someone you know would like our assistance with preparing and filing these types of applications or petitions, please contact an LAC attorney.