Numerous commentators have suggested that the Supreme Court appeared to be skeptical of the constitutionality of DOMA during recent oral arguments in United States v. Windsor. If the Supreme Court repeals DOMA for unconstitutionality, it is possible that legally married same-sex couples could qualify for immigration benefits. Allowing these potential benefits would be supported by well-established U.S. immigration policies favoring family reunification.
Though the details of such possible benefits are unknown, same-sex couples would likely qualify for family-based immigration benefits in the same ways that opposite-sex couples qualify. Preference would likely be given to immediate relatives of same-sex couples, with less preference, lower visa availability, and longer wait times given to more distant relatives. Some familial relations – aunts, uncles, and cousins, for example – would likely not qualify for benefits. As with opposite-sex couples, same-sex couples would likely have to prove that the marriage was entered into in good faith and not for the sole purpose of evading immigration laws. In addition to family-based visa options, same-sex spouses and children might be able to qualify as derivative beneficiaries pursuant to employment-based applications.
Washington Post: Majority of Supreme Court justices question constitutionality of Defense of Marriage Act.