Same-sex couples now have significantly greater immigration options to the United States, due to U.S. Supreme Court’s recent decision in United States v. Windsor. The decision struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. Subsequently, the Board of Immigration Appeals issued its precedent decision, Matter of Zeleniak, which confirmed the impact of the Windsor decision in the immigration context.
Based on these two decisions and pronouncements from the government, DOMA no longer stands in the way of recognizing same-sex marriages for purposes of immigration benefits, so long as the same-sex marriage is valid under the laws of the state or country where it was celebrated.
The Department of Homeland Security immediately announced that it will begin implementing this decision, and reports are now in that same-sex spousal immigrant petitions are being accepted and approved at the Service Centers. Similarly, the Department of State, which operates the Consulates abroad, has issued guidance to its adjudicators. U.S. Customs and Border Protection, which manages the border, so far has not issued guidance to its officers.
Same-sex married couples will now have the burden of proving that they were married in a marriage-equality state or country. Currently, 13 U.S. states plus the District of Columbia recognize and issue marriage licenses for same-sex couples. Washington State is included in this group. Same-sex married couples seeking entry under a dependent status (E.g. L-2, H-4, E) should be prepared to prove the validity of their marriage, as well as the fact that that the marriage is legally recognized in the state where it occurred.
As this is a significant new development in immigration law, it is fair to anticipate evolving changes to the administration of the law. We’ll stay on top of these changes, and are prepared to advise accordingly.