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Gay Marriage and Immigration

Prior to June 26, 2013, the federal Defense of Marriage Act (DOMA) defined marriage as being between a man and a woman, preventing same-sex spouses from seeking immigration benefits based on marriage. However, on June 26, 2013, the U.S. Supreme Court struck down DOMA as unconstitutional, based on the equal protection clause of the 5th Amendment. Because immigration benefits in the US are administered at the federal level, this new federal recognition of same-sex marriage has opened the pathway for same-sex couples to seek immigration benefits based on marriage.

The effects of the Supreme Court’s decision to strike down DOMA have already impacted immigration proceedings. In New York, an immigration judge stopped removal proceedings for a same-sex married couple and thus recognized their marriage as valid under immigration law. While only 13 states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington), as well as the District of Columbia, currently recognize same-sex marriage, this does not necessarily prevent couples in other states from seeking immigration benefits based on marriage. While the U.S. government still requires that couples seeking family-based immigration benefits be legally married (not including couples with civil unions or other legal rights similar to marriage), the government may recognize marriages that took place in states where same sex-marriage is legal, regardless of whether the couple seeking family-based immigration benefits currently resides in such a state. For example, bi-national spouses living in Kentucky who are seeking immigration benefits based on their marriage will most likely be recognized as legal spouses under immigration law, so long as their marriage took place in and was legally recognized by one the US states that does recognize same-sex marriage. Unlike some State and Federal benefits, such as surviving spouse Social Security benefits, which require that same-sex marriage be acknowledged in the couple’s state of residency, immigration benefits for same-sex couples do not currently have such a restriction.

With the ruling of DOMA as unconstitutional, bi-national same-sex couples can finally seek immigration benefits based on their marriage. Thus, U.S. citizens and green card holders can now petition for immigration benefits for their same-sex spouses. If you are seeking assistance with marriage or family-based immigration benefits for yourself or your spouse, please contact us at Our experienced attorneys will handle your case with respect and provide you with the highest quality service.

For more information about Marriage and Immigration, please click the following links:

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