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DOMA Decision Will Transform Immigration Law

By Allen Smith  7/11/2013
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The times they are a-changin’ in immigration law, thanks to the Supreme Court’s June 26, 2013, decision striking down as unconstitutional traditional definitions of “marriage” and “spousein the Defense of Marriage Act (DOMA).

“Today’s historic decision means that our immigration system must stop treating gay and lesbian families differently than other families,” the American Immigration Council said in a release. “For far too long, gay and lesbian U.S. citizens and lawful permanent residents have been barred from obtaining immigration status for their noncitizen spouses. As a result, families have been separated and spouses of U.S. citizens and permanent residents have been deported from the United States.”

No longer. President Obama welcomed the decision and directed the attorney general to work with his Cabinet “to review all relevant federal statutes to ensure this decision, including its implications for federal benefits and obligations, is implemented swiftly and smoothly.”

And Department of Homeland Security (DHS) Secretary Janet Napolitano promised, “We will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

“Far too often exceptions have been carved out to exclude immigrants from basic rights and protections,” said Benjamin Johnson, executive director of the American Immigration Council. “We are pleased that the administration has made it clear it intends for this important decision to apply fully to the immigration system. We urge the immigration agencies to work quickly to unite these families and honor the marriages that the Supreme Court has affirmed.”

Already, Traian Popov, a Bulgarian man married to a Floridian man, Julian Marsh, received a green card (i.e., a permanent visa). Marsh reportedly was celebrating his 55th birthday at Red Lobster when he found out the green card was issued.

H-4s, L-2s

Other visas will be issued to same-sex spouses, predicted Justin Storch, manager of agency liaison at the American Council on International Personnel, which is affiliated with the Society for Human Resource Management and based in Alexandria, Va.

“Prior to this decision, same-sex spouses have been denied all immigration benefits that opposite-sex spouses received based on their marriage,” he noted. “This includes, among other things, marriage-based green cards (and eventual citizenship), and employment-based visas for spouses, such as H-4s (the visas that H-1B spouses receive) and L-2s (the visas that L-1 spouses receive).

“H-4 visas are issued to spouses of H-1B professional visa holders, such as IT and engineering professionals,” explained Mira Mdivani, an attorney at the Mdivani Law Firm in Overland Park, Kan. “L-2 visas are issued to spouses of L-1 visa holders, who are executives/management or key knowledge holders transferred from a foreign subsidiary, affiliate or a foreign parent company.”

Mdivani continued: “Employers will need to remember to have spouses’ applications for H-4 and L-2 extensions of status to be filed together with petitions to extend their employees’ H-1B and L-1 status.”

Same-sex spouses will benefit from the DOMA ruling if their marriage was performed legally, whether in a U.S. state or in a foreign country where same-sex marriage is legal, Storch added.

“For a long time, same-sex partners have been denied all the benefits that have been available to so-called traditional spouses—i.e., heterosexuals—,” noted Hector Chichoni, an attorney at Duane Morris in Miami.

“These benefits included not only family- or employment-based green cards and nonimmigrant visas classifications (e.g., L-2, H-4, TD, E-2, F-2, J-3) applicable to derivative dependent spouses but also denied in cases such as U (victims of certain crimes), V and in VAWA (Violence Against Women Act), widower and even Asylum,” he explained. Chichoni expects the tables to be turned and these visas to be available to same-sex spouses.

He predicted that, in light of the DOMA decision, U.S. Citizenship and Immigration Services (USCIS) would take some time to review and adjust the present rules, policies and procedures.

Cottage Industry

“Not only will USCIS recognize foreign marriage licenses issued to same-sex couples in those foreign lands but will also recognize a wedding license issued by a state for a foreign national residing elsewhere—in other words, the unconstitutionality of DOMA will have the effect of creating a cottage travel industry for same-sex foreign nationals and their spouses to travel to neighboring states that recognize the union,” said Kevin Lashus, an attorney at Jackson Lewis in Austin, Texas.

Marriages between U.S. citizens and legal permanent residents are presumed fraudulent—even between heterosexuals, he added. “Generally, spouses must evidence the bona fides of the relationship during an interview to obtain the immigration benefit. Adjudicators will need to be confident to ask the same sensitive questions of same-sex couples, just as they would to a man-woman pair. I am confident that the early unpleasantness of delving into the meat of the relationship is a task USCIS will prepare its adjudicators for—but it may take some time.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor. 

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