SAME-SEX MARRIAGE IMMIGRATION CASES
On June 26, 2013, the U.S. Supreme Court issued an important decision in the case of United States v. Windsor. The Court found that if a same-sex couple legally marries in a state that permits same-sex marriage, the Federal Government must recognize that marriage as a valid one under federal law, including immigration laws.
Each state still decides on its own whether it allows same-sex couples to get married or not. But for those states that do allow same-sex marriage, those same-sex marriages are now recognized by the federal government.
In the nearly 10 months since this case was decided, it has had a big effect on immigration law. Now same-sex couples and their families are able to apply for the same immigration benefits as heterosexual couples and families. Having a marriage recognized under federal law is important because marriage defines the relationship between family members and helps determine whether someone qualifies to file a Family Petition on behalf of their foreign-born family member.
For example, if one of the spouses in a same-sex couple is a Lawful Permanent Resident or U.S. citizen, that spouse may file a petition for their undocumented spouse to begin the process of obtaining lawful status.
Another type of relationship that can benefit from this change in the law is the stepparent/stepchild relationship. If, at the time a couple gets married, one of the spouses has a biological child who is under 18, that child becomes recognized under immigration law as the stepchild of the spouse. If the stepparent is a U.S. citizen or Lawful Permanent Resident, he/she may file a petition on behalf of their stepchild to begin the lawful immigration process for that child.
The Supreme Court’s new definition of marriage could also help people who are in removal proceedings in Immigration Court. There are certain defenses to removal that may apply if the individual has a spouse or stepchild who is a U.S. citizen or Lawful Permanent Resident. Now, same-sex spouses and stepchildren arising from same-sex marriages will also be recognized in removal proceedings.
Keep in mind that in the above examples, it is never enough simply to show that the marriage was legal where performed. In addition, it must be established that the marriage was not entered into solely for the purpose of obtaining immigration benefits. In other words, evidence must be submitted to show that the marriage was entered into with the intention of sharing a life together. The same types of evidence are useful for same-sex marriages as for heterosexual marriages, including: evidence of the couple’s finances being shared, children being co-parented, property obtained jointly, and travel undertaken together, among others.