Immigration and Same-Sex Marriage

Last week, North Carolina followed suit with several other states in passing a state constitutional amendment defining marriage as between one man and one woman (and also foreclosing the option of civil unions and domestic partnerships for both same and opposite sex couples in North Carolina). There are, however, several states that do permit same sex marriages. How does the United States Citizenship and Immigration Services deal with this issue when considering family-based immigration petitions?

Federal Law Does Not Recognize Same-Sex Marriages

Under the Defense of Marriage Act (DOMA), the federal government only recognizes heterosexual couples for purposes of applying for government benefits — which arguably includes sponsoring immediate relatives for immigration petitions. Last year, the Obama administration announced its position that DOMA was unconstitutional and therefore the adminstration would not defend the act in court. However, the administration’s approach to enforcement of DOMA has been something of a mixed bag, which is leading to a great deal of confusion and frustration among citizens and LPRs who have immigration petitions pending for their immigrant spouses. So far, the trend with the USCIS has been to deny family-based immigration petitions for same-sex spouses who have valid marriages in their home states. However, with President Obama’s recent announcement that he does, in fact favor same-sex marriage, that may very well change.

New York Case Challenges Current Policy

Last month, Immigration Equality filed a complaint in the U.S. District Court for the Eastern District of New York on behalf of several married gay couples, who are legally married in New York, against the federal government alleging that the USCIS’ policy in preventing the plaintiffs from sponsoring their legally-recognized spouses for lawful permanent residence is unconstitutional. In cases of married heterosexual couples, the government will recognize the foreign national spouse as an “immediate relative” which would allow the citizen or lawful permanent resident spouse to sponsor his/her immigrant spouse for a green card or even citizenship. The complaint alleges that the USCIS’ enforcement of DOMA in the context of considering family-based immigration petitions violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

The effects of legislation regarding families are far-reaching, and almost always substantially impacts the way immigration applications are considered. Immigration attorneys and immigrants alike should monitor new developments in the policies of this administration, as well as the laws of their states with regard to domestic relations. The only certainty is that immigration law and policy will evolve along with this country’s definitions of marriage and family relations.