Gay and lesbian spousal petitions now possible?

June 26, 2013 is a historic day for gay and lesbian couples. The Supreme Court of the United States ruled that the Defense of Marriage Act (DOMA) is unconstitutional, and that same–sex marriages are once again valid in California!

What this means is that it is  now  possible for same–sex couples, who marry or live in states where such marriages are recognized, to be petitioned and processed for spousal green cards, if one spouse is a US citizen or green card holder.

In light of these Supreme Court decisions, the USCIS will now have to recognize same-sex marriages as petitionable relationships and I expect the USCIS will soon issue memos, regulations, and/or guidance, implementing these Supreme Court rulings. For my part, my office is committed to helping same-sex couples enjoy their constitutional (and human) rights, including the right to be petitioned by their US citizen or lawful resident spouse.

By way of background, DOMA defined marriage as a “legal union between one man and one woman as husband and wife.” Therefore, marriages between same-sex couples were not recognized in connection with thousands of federal laws and benefits. Same sex couples challenged the constitutionality of DOMA because it was discriminatory and denied them “equal protection” under the Constitution.

The Supreme Court ruled that the definition and regulation of marriages have always been within the authority of the states, not the federal government. Therefore, it was wrong for the federal government to disregard state laws that recognize same–sex marriages, and deny same–sex couples the same benefits and privileges afforded to opposite–sex couples. (In that particular case, a lesbian couple lived in New York, where same–sex marriages were recognized. However, the federal government refused to recognize that marriage in connection with certain federal benefits (estate tax benefits available to married couples) by relying on DOMA’s definition of marriage.

The Supreme Court ruled that it was unconstitutional for the federal government to disregard a state’s recognition of same-sex marriages in connection with those federal benefits. Instead, if the marriage is “legal” in a particular state, then it should be legal in connection with federal benefits. Since New York recognized same-sex marriages, the federal government was required to do so as well.

Immigration is among the federal rights and benefits available to married couples, such as the ability of a US citizen or a lawful resident to petition  his or her spouse. Right now, the states that recognize same – sex marriages include Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Washington state, Maryland, Maine, Rhode Island, Delaware, Minnesota, the District of Columbia, and, once again, California.

If you are a same-sex couple and were married, or are residing in any of these states, I would definitely seek the advice of an attorney, who can evaluate your situation, determine your eligibility to file a spouse petition (or be petitioned by your same–sex spouse) and finally be able to enjoy the full extent of your constitutional (and human) rights. Mabuhay!!

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