DOMA is Dead – Implementation of the Supreme Court Ruling in U.S. Immigration

By Jacqueline Lentini McCullough

On June 26, 2013, the Supreme Court unequivocally affirmed there is no legitimate reason for the federal government to discriminate against married couples based on sexual orientation. The Defense of Marriage Act (DOMA) of 1996 defined marriage as a legal union between a man and a woman. The implication of the Supreme Court’s historic decision in the immigration context is that the U.S. must treat married gay and lesbian couples the same way it treats married heterosexual couples.

While many details of how the immigration process will be implemented are still uncertain, U.S. Citizenship and Immigration Services (USCIS) published Frequently Asked Questions (see www.uscis.gov) regarding same-sex marriage on July 2, 2013. A same-sex marriage can now be the basis for an immigrant visa for a spouse married to a U.S. citizen. In evaluating the petition, USCIS will look to the law of the location that the marriage took place to determine if it is a valid marriage for immigration purposes. The law of the state of residence must also be taken into account. Further fact specific circumstances may develop as federal immigration benefits are applied.