Immigration benefits in a post-DOMA era

By Tulin Gurer and Raphael Moore

In its June “Windsor” decision, the U.S. Supreme Court held that wording in the Defense of Marriage Act was unconstitutional. That wording was, among other things, the primary barrier that same-sex couples faced when trying to obtain many types of immigration benefits.

Last week, the United States Citizenship and Immigration Services issued a directive to immediately start accepting immigration petitions filed by U.S. citizens on behalf of their noncitizen same-sex spouses. It has also created procedures for reopening visa petitions that previously were denied on the basis of DOMA, and began providing other immigration benefits to same-sex couples.

So how does this affect benefits? Here are a few examples:

* A U.S. citizen can now file a spousal petition on behalf of her same-sex foreign spouse, ultimately resulting in a green card for the spouse;

* A student in the U.S. on a student visa can have his same-sex spouse accompany him during his studies as a derivative beneficiary of a nonimmigrant visa;

* A U.S. citizen intending to marry a same-sex partner can petition to bring that partner to the United States with a fiancé/é petition;

* A high-tech worker coming on an H1B visa can have her same-sex spouse join her during her three-year permitted stay as a nonimmigrant; and

* A U.S. citizen or a lawful permanent resident can now petition for the biological children of her same-sex spouse as step-children.

The benefits afforded to same-sex couples are no different than those available to different-sex couples, and still must hinge on proof of a valid marriage. U.S. Citizenship and Immigration Services applies the “place of celebration rule,” which means that as long as a couple is lawfully married under the rules of the place of marriage, the marriage will be deemed valid regardless of where the couple may reside and whether or not their home state recognizes same-sex marriages.

Equally so, just as the agency keeps an eye out for sham marriages with different-sex couples, it will do so with same-sex marriages. Proof that a marriage is real can typically be done by showing joint bank accounts, wedding albums, co-signed leases, jointly filed tax returns, etc. This may, however, pose a unique problem for same-sex couples who for reasons related to their families, communities or countries of origin, may have kept the fact of their marriage a secret.

Although U.S. Citizenship and Immigration Services has taken quick steps to implement the Windsor decision, it is likely that unique issues will arise in the coming months. For instance, it is unclear how the agency will treat couples in civil unions or other nonmarital recognized relationships.

Ultimately, it will be up to those seeking benefits to help educate the agency’s adjudicators about changes in the law and unique factual circumstances encountered. Prior to seeking benefits, you should carefully weigh your own circumstances, and research the law or speak with a trusted attorney.

— Raphael Moore practices law in downtown Davis. Tulin Gurer is entering her final year at the UC Davis School of Law. They may be reached at [email protected]

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