On July 1, 2013, the Department of Homeland Security released updated guidance on immigration benefits for same-sex binational couples following the Supreme Court’s recent decision in U.S. v. Windsor, which overturned Section 3 of the Defense of Marriage Act (“DOMA”) as unconstitutional.
The guidance, though brief, makes clear that same-sex couples are permitted to file family-based immigration petitions. Same-sex couples will be held to the same standards of qualification and admissibility as opposite-sex couples. Left unclear in the guidance, however, is whether a same-sex married couple, with a lawful marriage from a state permitting same-sex marriage, will be granted immigration benefits if they reside in a state that does not allow same-sex marriage. In part, DHS explained that “federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of the celebration of marriage.”
In a previous Donati Law blog, I suggested that the repeal of DOMA could signal benefits for same-sex married couples. We will continue to monitor the immigration effects of U.S. v. Windsor and provide information as it becomes available.