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Same-sex spouses now entitled to immigration benefits

FitzGerald-PimentelIn June, the Supreme Court handed down its landmark decision U.S. v. Windsor, declaring §3 of the Defense of Marriage Act unconstitutional on the basis that DOMA “violated basic due process and equal protection principles applicable to the Federal Government.” U.S. v. Windsor, 570 U.S. ___, ___ (2013) (slip op. at 20).

At the center of Windsor were Edith Windsor and Thea Spyer, who were married in Ontario, Canada. The marriage was recognized by the state of New York. Upon Spyer’s death, Windsor attempted to claim an exemption from estate taxes for surviving spouses. However, as a result of DOMA, which excludes same-sex spouses from the definition of “spouse” for the purposes of federal law, Windsor was liable to pay estate tax in excess of $300,000. She subsequently brought suit to challenge the constitutionality of §3 of DOMA.

Writing for the majority, Justice Anthony M. Kennedy underscored the historical right of the states to define and regulate marriage and domestic relations, stating that “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.” Id.

In the wake of the decision, the federal government has acted quickly to implement policy changes that confer upon individuals in same-sex marriages all the benefits of other lawfully recognized marriages.

Within two days, the Office of Personnel Management released a memorandum for the heads of executive departments and agencies, informing them that, effective immediately, the federal government would be extending federal benefits including health insurance, life insurance, retirement and flexible spending accounts to same-sex spouses, as well as children of same-sex spouses.

The federal government also has been acting quickly to implement the necessary policy changes in order to be in compliance with the Supreme Court decision, and nowhere is that more obvious than within all matters related to immigration benefits.

Prior to the decision in U.S. v. Windsor, lawfully married same-sex spouses were unable to obtain immigration benefits based on such a relationship. U.S. citizens and permanent residents married in a state or country that recognized same-sex marriage could not legally file a petition for a green card for that spouse.

In addition, individuals entering the United States in a work authorized capacity could not apply for derivative status for their spouses.

A same-sex spouse without an alternate avenue to obtain legal status in the United States was relegated to a “B” visa for domestic partners, which often meant that such individuals had to leave the United States or apply to extend their status every six months, each time subjecting themselves to the potential that their entry or extension would be denied for a multitude of reasons.

U.S. v. Windsor has changed the landscape for bi-national couples who want to reside in the United States together both permanently and temporarily.

Immediate action

Secretary of Homeland Security Janet Napolitano released a statement on June 26 stating that, moving forward, her department would implement the “decision so that all married couples will be treated equally and fairly in the administration of [the United States’] immigration laws.”

On June 28, the Department of State released a statement that it would be “working with the Department of Justice to review all relevant federal statutes and regulations that affect visa processing and immigration benefits.” Consular Services and the Supreme Court’s Ruling on the Defense of Marriage Act, available at http://travel.state.gov/travel/ travel_ 6019.html.

On June 30, the New York Times confirmed what is thought to be the first marriage-based petition on behalf of a same-sex spouse that was approved by the U.S. Citizenship and Immigration Service, surprising many with the speed at which USCIS began implementing the policy change (“Gay Married Man in Florida is Approved for Green Card”).

For a number of years, advocates throughout the country, led by organizations such as Immigration Equality in New York, have been filing petitions on behalf of same-sex spouses, knowing that they would be denied in the short term, in the hope that through comprehensive immigration reform the passage of a specific bill (the Uniting American Families Act) or a judicial decision would change the law and such denials would be reopened.

After the Windsor decision, agency officials confirmed that, for the last two years, USCIS has been keeping a list of those petitions that were denied as a result of DOMA and that the agency will now begin reversing those denials, as long as no other issues are present.

The Department of Homeland Security also confirmed that USCIS would begin looking at the law of the place of the marriage, regardless of the location of the applicant’s U.S. residence, when determining eligibility. That means that USCIS will not look to the state in which a couple is currently residing. As such, individuals legally married in states and countries where same-sex marriage is recognized can now begin seeking immigration benefits for their same-sex spouses.

It is important to note, however, that civil unions are not accorded the same privileges as marriage, and, therefore, a couple may not apply for immigration benefits on the basis of a civil union.

Same-sex marriage currently is legal in 13 states and the District of Columbia: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.

Additionally, same-sex marriage is legal nationwide in the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, France and Brazil.

Laws legalizing same-sex marriage have also been passed in New Zealand and Uruguay, but have yet to go into effect, and in some regions of Mexico gay marriage is also legal. A recent court decision in Colombia has also effectively legalized same-sex marriage. Finally, the United Kingdom currently has a bill that has been passed through two legislative houses and is currently in the committee stage. Should it pass a third vote, it will become law.

U.S. citizens and permanent residents legally married to foreign nationals can sponsor their spouses for permanent residence by filing a Form I-130 Petition with USCIS. The initial evidence and documentation required for such a petition is the same as that for an opposite-sex case:

•           a copy of the marriage certificate;

•           evidence of the sponsor’s U.S. citizen or permanent resident status;

•           copies of the foreign national’s passports and other immigration documentation; and

•           evidence of the termination of any prior marriages, as well as evidence of bona fides of the marriage.

The form should be filed with the applicable USCIS service center.

If the foreign spouse is marrying a U.S. citizen and is currently in the United States, he or she may apply for permanent residence by filing the “adjustment of status” application concurrently with the Form I-130 Petition.

If the foreign spouse is marrying a U.S. citizen but is not currently in the United States, he or she may apply for an immigrant visa through a process known as “consular processing,” which will be done through the nearest U.S. consular post.

If the foreign spouse is married to a U.S. permanent resident, usually there will be a waiting period before he or she may apply for permanent resident status. In such cases, the foreign spouse will be issued a “priority date” for the I-130 filed on his or her behalf, and when the date becomes current (as determined by the U.S. State Department’s monthly Visa Bulletin) then he or she can apply for permanent residence.

As of this month, the State Department has updated the Visa Bulletin to show that all priority dates are current. However, in September or at any later date, the tables could retrogress and there could once again be a waiting period.

Please also note that K-3 visas for foreign same-sex spouses of U.S. citizens should now be available, as should K-2 visas for fiancées of citizens. Finally, derivative status is now available for the same-sex spouses of primary applicants and beneficiaries of various non-immigrant visa categories, such has H-1B and L-1 temporary work visas.

U.S. v. Windsor’s effects on U.S. immigration law have been sweeping and immediate, and client advocates have been able quickly and efficiently to file for their clients in the aftermath of the decision.

The Department of Homeland Security as well as the Department of State have worked swiftly to ensure that the Supreme Court’s landmark decision could be implemented right away, benefitting the lives of thousands of legally married same-sex couples.

Scott J. FitzGerald is the managing partner of the Boston office of Fragomen, Del Rey, Bernsen & Loewy and an adjunct professor of immigration law at Boston College Law School. Stephanie S. Pimentel is a student at Boston University School of Law and law clerk at Fragomen Del Rey.

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