DOMA Struck Down!

Implementation of the Supreme Court Ruling on the Defense of Marriage Act

Statement from Secretary of Homeland Security Janet Napolitano:

“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.  To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (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.”

Frequently Asked Questions

Q1:  I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national.  Can I now sponsor my spouse for a family-based immigrant visa?

A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Q2:  My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not.  Can I file an immigrant visa petition for my spouse?

A2: Yes, you can file the petition.  In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

Press Office
U.S. Department of Homeland Security
Press Release
June 26, 2013
Contact: DHS Press Office, (202) 282-8010

STATEMENT BY SECRETARY OF HOMELAND SECURITY JANET NAPOLITANO ON THE SUPREME COURT RULING ON THE DEFENSE OF MARRIAGE ACT

“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.”

###
Note: In an exchange after his keynote speech at the AILA Annual Conference (AC), USCIS Director Alejandro Mayorkas indicated that since February 2011, when the Administration opined on the unconstitutionality of DOMA, USCIS has kept a list of all I-130 petitions filed by same-sex bi-national couples that were denied, and is now prepared to act accordingly.