What does the Death of DOMA mean for my family?

Posted on 11/19/13

Connecticut Immigration Attorney James A. Welcome answers questions regarding the death of the Defense of Marriage Act and its effect on families.

What does the Death of DOMA mean for my family?

Since the Supreme Court found section 3 of Defense of Marriage Act (DOMA) unconstitutional, federal benefits for legally married same-sex couples are becoming implemented as quickly as possible.

In a statement made earlier this month by Janet Napolitano, the Secretary of the Department of Homeland Security, she directed United States Customs and Immigration Services to review petitions for family-based visas on behalf of same-sex spouses in the same manner as petitions on behalf of opposite-sex spouses. This means that legally married spouses who are U.S. citizens or permanent residents can sponsor their foreign spouses for a visa, regardless of whether the couple is straight or gay. Petitions can no longer be automatically denied because of the same-sex nature of a marriage.

Is there a special form to petition for same-sex spouses?

The same form is used to sponsor all spouses and family members for visas (Form I-130). Whether or not the petition is accepted is determined with Immigration Laws, not by the same-sex or opposite-sex nature of the marriage.

Is same-sex marriage treated the same as opposite-sex marriage everywhere in the United States?

Unfortunately, while same-sex married couples are now entitled to the same federal benefits as opposite-sex married couples, state laws still pose obstacles for same-sex marriages, depending on which state they live in and how that state regards gay marriages. While some states recognize same-sex marriages, others do not, making some individual cases unclear.

According to the USCIS, you can file an immigrant visa petition for a same-sex spouse in a state that does not recognize gay marriage, as long as the couple was married in a place that does recognize the marriage. However, because individual and state circumstances differ, there may be some other limitations.

Some details are still hazy and being worked out, but for the most part this is excellent news for couples and families who were forced to live abroad because of DOMA. Now, they can come home. In addition, families who were separated because they could not obtain visas can finally be reunited.

The purpose of this article is to provide helpful, basic information for residents in the Connecticut, Massachusetts and New York areas. This information and specific filing instructions can be found on the USCIS website at www.uscis.gov. We are here to answer any questions you have and give legal advice concerning this and other legal immigration concerns.