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Sitting in the enormous Grand Ballroom at the Westin Hotel in San Francisco, surrounded by hundreds and hundreds of immigration lawyers, the room pulsed with long-awaited anticipation and an undeniable sense of victory.  On that June 27, 2013 early morning – it was my very first, annual conference of the American Immigration Lawyers Association (AILA), and I was overwhelmed to be among my esteemed colleagues and renowned mentors, as we witnessed a truly historic moment.  The AILA conference “kick-off” began with the announcement that the Supreme Court had struck down section 3 of the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman for all federal law purposes.  The room erupted in cheers, and pure joy and triumphant pride pervaded the room.  I had to bite back the lump rising in my throat…

Just the day before, on June 26, 2013, the Supreme Court had issued a decision in the case, United States v. Windsor, in which it struck down DOMA’s definition of marriage as between a man and a woman as unconstitutional.  Until then, this definition had prevented immigration agencies from recognizing lawful, same-sex marriages for any immigration purpose.  As I sat in that Ballroom, Alejandro Mayorkas, the Director of U.S. Citizenship and Immigration Services (USCIS), was invited up to the stage.  He was bluntly asked how USCIS will respond given the latest Windsor decision.  Director Mayorkas answered that his agency had maintained a list of marriage cases that had been denied since the Obama administration had stopped defending DOMA in 2011, and that it would reconsider the cases in accordance with the recent Supreme Court’s decision.  The crowd again erupted in cheers!

Almost immediately after this latest Supreme Court decision was issued, President Obama directed all federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.  Accordingly, theSecretary of Homeland Security, Janet Napolitano, issued a directive to USCIS “to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” source

Foremost, this now allows for an American spouse to sponsor his/her same sex, foreign national spouse for a family-based immigrant visa (or a green card), as long as they have been legally married in a place where same-sex marriages are recognized and valid.  In other words, the location of celebration of the marriage should be key, not the state of residence.  In fact, USCIS has already begun to issue approval notices for green card applications of married, same-sex couples for the first time.

Moreover, with the demise of DOMA, there are other immigration-related implications beyond the green card.  What many may not realize is that the Windsor decision also provides same-sex spouses access to numerous other immigration benefits including:

  • Derivative visas for spouses of holders of nonimmigrant visas like H-1B or L visas;
  • Hardship waivers for people who have been deported or barred from reentry;
  • Eligibility for cancellation of removal, 212(h) hardship waivers of minor offenses;
  • Reopening of removal orders; and
  • Other considerations reserved for the spouses of U.S. citizens.

In fact, just last week USCIS updated its website confirming that in all cases where the eligibility of an immigration benefit depends on the existence of a “marriage” or on one’s status as a “spouse,” “a same-sex marriage will be treated exactly the same as an opposite-sex marriage.” source.

Eventually, these benefits will hopefully enable thousands of bi-national, same-sex spouses to return to the U.S. after forced separations from their American spouses, and prevent such separations in the future.  Same-sex couples, who had “voluntarily” exiled themselves from the U.S., so that they can maintain an enact family-unit and live in the same location, may now relocate to the U.S., as a family if they so choose.  Ultimately, the recent Supreme Court decision means that same-sex couples need no longer worry that their families will be forced to break up due to immigration law.

Of course, there are still limitations and further battles that loom ahead in order to gain full and complete, equal rights for same-sex couples, and the LGBT community in general.  Most notably, same-sex marriage is currently legal in only 13 states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) and the District of Columbia.  This can be limiting because, for one, some couples, who do not live in one of the above 13 states, may not readily be able to visit such state for the time period necessary to obtain a valid marriage certificate.  Furthermore, while the state of celebration should be controlling, further clarification is needed from USCIS.  Thus, at the moment, to ensure best chance of success, the optimal scenario would be if the same-sex couple has a valid marriage license from one of the above 13 states and also resides in one of those states.

Clearly, the Winsor decision does not pave way for blanket approvals (or easier process) for immigration applications for same-sex couples. On the contrary, same-sex couples must prove that their marriage is bona fide just like heterosexual couples.  Obviously, a valid marriage certificate is essential, but this alone is insufficient.  Other additional proof of bona fide marriage can include documentation of joint ownership of property, joint lease, joint tax returns, joint bank accounts, affidavits from friends and family, pictures of the wedding/honeymoon, and so on.  Unfortunately, some of these may not yet be possible for same-sex couples to obtain.  Perhaps most importantly, while the law now dictates that the same standard of proof be applied for same-sex couples as heterosexual couples, after years of denials based on the DOMA’s definition of marriage, it may be difficult to rid of the “institutional” bias against same-sex couples overnight.

But all in all, as I sat there during the AILA conference, the future surely looked promising.  And given the speed at which the Obama Administration has sought to implement the Supreme Court’s decision, it confirms that – the pendulum has indeed shifted.

Written by H. Heidi Son, Esq.
Of Counsel
SW Law Group, P.C.

July 2013