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USCIS to Implement US vs. Windsor Supreme Court Ruling Immediately

It’s been less than a week since the Supreme Court struck down on June 26, 2013, Section 3 of the Defense of Marriage Act (DOMA) in the landmark case, United States vs. Windsor (570 U.S. __, 2013), holding that Section 3 of DOMA violated the Fifth Amendment’s guarantee of equal protection.  The news circuits have been busy reporting on the various domino effects since the ruling. Immediately after the decision was made, Department of Homeland Security (DHS) Secretary Janet Napolitano, was quick to issue a statement that same day:

I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits.  I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.

Yesterday, USCIS released a statement indicating it would implement the Supreme Court ruling in USCIS petitions, effective immediately!  Form I-130, Petition for Alien Relative may now be filed on behalf of same-sex spouses, even if the same-sex couple lives in a state that does not recognize same-sex marriages, so long as the marriage took place was validly recognized. This directive, with immediate effect, from DHS is nothing short of groundbreaking in the field of immigration.  Of course, petitioners who submit an immediate relative petition on behalf of their same-sex spouse will be subject to the same standard of review as that of opposite-sex couples, by providing the bona fides of a marriage. Immigration Equality, an organization that has been highly active in the push to declare DOMA unconstitutional, has released a detailed FAQ on the effects of the decision on same-sex couples seeking immigration benefits.  These questions include:

  • Can U.S. citizens petition for their same-sex partners for a greencard if they were married outside the U.S.?
  • Can same-sex spouses qualify for non-immigrant visa dependent visas?
  • How will having children affect immigration petitions?