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Immigration Implications of Supreme Court’s Defense of Marriage Act (DOMA) Ruling

Court's holding that section 3 of the act is unconstitutional will allow U.S. nationals to sponsor same-sex spouses for immigration benefits.

On June 26, the U.S. Supreme Court ruled that section 3 of the Defense of Marriage Act (DOMA)—the provision of the law barring the federal government from recognizing same-sex marriages—is unconstitutional.[1]

DOMA, which was signed into law in 1996, precluded same-sex married couples from receiving many of the benefits available under federal law to heterosexual married couples. Because immigration law is federal, one such precluded benefit was the ability to sponsor a spouse for an immigration benefit. While U.S. citizens and permanent residents in heterosexual marriages are permitted to sponsor a spouse from another country to reside legally in the United States, U.S. citizens and permanent residents in same-sex marriages have been unable to do so.

Janet Napolitano, Secretary of the Department of Homeland Security, issued the following statement on the Supreme Court's ruling: "I applaud today's Supreme Court decision in United States v. Windsor holding that [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 [Obama 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."[2]

It is expected that the Supreme Court's ruling will result in immigration benefits being conferred upon same-sex married couples equal to those benefits currently available to heterosexual couples. These benefits are expected to apply to marriages that were lawfully entered into in a U.S. state or foreign country recognizing same-sex marriage. Whether a couple resides in a U.S. state recognizing same-sex marriage should have no impact on eligibility. It is not yet clear whether same-sex civil unions and/or domestic partnerships will be recognized for immigration benefits.

Representatives from the U.S. Citizenship and Immigration Services will be attending the national American Immigration Lawyers Association conference, which began on June 26 in San Francisco. We expect to have more information within the coming days on how this change in law will impact lesbian, gay, bisexual, and transgender (LGBT) foreign nationals.


[1]United States v. Windsor, No. 12-307 (U.S. June 26, 2013), available here.

[2]. Press Release, Dep't of Homeland Sec., Statement by Secretary of Homeland Security Janet Napolitano on the Supreme Court Ruling on the Defense of Marriage Act (June 26, 2013), available here.

Copyright © 2022 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume III, Number 178
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About this Author

Eric Bord, Immigration Attorney, Morgan Lewis
Partner

Eric S. Bord counsels clients on corporate immigration issues involving the recruitment, hiring, transfer, and retention of personnel worldwide. He also advises businesses on compliance and risk management in connection with their global immigration programs. This includes counseling on compliance with I-9 and E-Verify rules, advising clients during immigration investigations, and conducting immigration due diligence for corporate transactions. Eric heads Morgan Lewis’s immigration compliance and risk management practice.

202-739-6040
A James Vazquez-Azpiri, Morgan Lewis, employment attorney
Partner

A. James Vázquez-Azpiri counsels corporate clients on hiring and retaining foreign employees in his business immigration law practice. He advises businesses on labor certifications, specialty occupation petitions, and intracompany transfers. Clients rely on James for guidance through immigration law compliance during mergers, acquisitions, and corporate restructurings. He helps clients think and work proactively by providing them with traditional compliance policy reviews and audits, case management and litigation technology, and international executive travel and...

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Eleanor Pelta, Morgan Lewis, Immigration Lawyer
Partner

A recognized leader in immigration and nationality law, Eleanor Pelta counsels clients on legal and strategic issues arising from the international movement of key personnel, from the individual transfer of high-ranking executives to high-volume transfers of expert staff. Her experience includes the use of blanket visa programs and the qualification of companies as “treaty investor” or “treaty trader” entities. Additionally, Eleanor counsels businesses on the immigration implications of corporate changes, such as mergers, acquisitions, downsizings, reductions in force,...

202-739-5050
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