While the Supreme Court’s rejection of the federal Defense of Marriage Act, “DOMA” does little to expand the rights of same-sex couples residing in Pennsylvania, as it relates to immigration, same-sex couples may now share the same benefits as their heterosexual counterparts.
In defining “marriage” to be between one man and one woman and “spouse” as a person of the opposite sex who is a husband or a wife, DOMA prohibited the federal government from recognizing same-sex marriages as the grounds for any immigrant or non-immigrant family based visa. Therefore, even in states that recognized same-sex marriage, a U.S. citizen or lawful permanent resident could not sponsor his or her same-sex spouse for a U.S. family-based visa.
This changed in June, when just two days after the U.S. Supreme Court struck down DOMA, the United States Citizenship and Immigration Service, USCIS, issued its first approval of a same-sex marriage-based permanent residency petition to a gay couple from Florida. As in Pennsylvania, Florida does not recognize same-sex marriage. In a written decision, the Board of Immigration Appeals also recently reinforced the understanding that DOMA is no longer an “impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated.”
This shift in the law means that a visa will not be automatically denied for a same-sex partner as it had been in the past, thus relieving a significant burden previously laid upon couples in same-sex marriages. These burdens touched on every aspect of life. In stark contrast to heterosexual couples, without independent grounds for a visa, a foreign same-sex spouse could not work, or perhaps even live, in the United States. As it relates to immigration, same-sex couples are now on equal ground with heterosexual couples, in that immigration status will be determined according to immigration laws, not the same-sex nature of a marriage, regardless of whether the same-sex couple resides in a state that recognizes same-sex marriages.
What remains to be seen is how USCIS will ultimately treat same-sex marriage petitions previously denied on that basis alone. According to USCIS, for the past two years it has maintained a list of these denials in anticipation that DOMA would be subject to review by the U.S. Supreme Court. There are reports that these denials will be reversed without filing a new application, so long as no new issue has arisen in the interim. Otherwise, absent a previous denial, petitions will now be processed at the same pace as heterosexual couples.
Lehigh Valley Family Law is a publication of the KingSpry Family Law Practice Group. It is meant to be informational and does not constitute legal advice. Our editor-in-chief is Donald F. Spry, II.
