Marriage Equality and US Immigration Law

US immigration law reflects the goal of family unification (or reunification) by providing for family based petitions for permanent residence. While most immigration categories have annual numerical limits that have resulted in long waits outside of the U.S. for beneficiaries of immigrant visa petitions, the immigration law admits an unlimited number of spouses of U.S. citizens. The U.S. Immigration law also allows a U.S. permanent resident to file for a spouse but this category has an annual limit which creates a waiting list that is backlogged (as of October 2016) to Dec. 22, 2014. Immigration law also provides for derivative status for spouses of those who qualify for temporary visas for business or professional purposes.

Over the years I have had U.S. clients who married a foreign national outside of the U.S., ask me if they need to remarry in the U.S. for their marriage to be recognized for immigration purposes. The answer to that has always been No – that U.S. immigration law recognizes a marriage as valid if it was valid in the place where the marriage was celebrated, whether the marriage was performed in another state or another country. The one big exception to this has been for same sex marriages. The reason for this was the Defense of Marriage Act (DOMA). Before being ruled unconstitutional, DOMA defined marriage for federal purposes as the union of one man and one woman, and allowed states to refuse to recognize same- sex marriages recognized by other states or countries. In 2013 the U.S. Supreme Court (in the case of United States v. Windsor) struck down Section 3 of DOMA which had barred same-sex married couples from being recognized as “spouses” for purposes of federal laws, effectively barring them from receiving federal marriage benefits. The case of United States v. Windsor dealt with the right of a surviving spouse (in a marriage recognized by N.Y. law) to a federal estate tax exemption.

After her wife of many years dies, Mrs. Windsor was denied the estate tax exemption and ordered by the Internal Revenue Service to pay $ 363,053. in estate taxes. The IRS took the position that she was barred from taking this exemption by Section 3 of DOMA which defined the term “spouse” as only applicable to marriages between a man and woman. The U.S. Supreme Court found that the U.S. federal interpretation of “marriage” and “spouse” to apply only to opposite-sex unions, was unconstitutional. Justice Kennedy, writing for the majority said “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

Prior to being ruled unconstitutional, DOMA did not prevent individual states from recognizing same-sex marriage, but it denied federal benefits available to legally married same-sex couples. These benefits included the right to file an immigration petition for their spouse.

When the Windsor case was decided on June 26, 2013, Florida had an existing ban on same sex marriage. On January 6, 2015 same sex marriage was legally recognized in Florida as a result of Brenner v. Scott, the lead case on the issue. Between June 26, 2013 and January 6, 2015, same sex couples residing in Florida could file for U.S. permanent residence based on a marriage in another state or country despite the Florida ban because immigration law is a federal law and, without DOMA, immigration could recognize a valid marriage performed in other jurisdictions just as they did for opposite-sex marriages. Since January 6, 2015 my same sex clients residing in Florida do not have to travel out of state to marry.

While the immigration system is often criticized, when it came to accepting the demise of DOMA, they should be commended for their acceptance of same sex marriages. Applications for residence based on a marriage between a U.S. citizen and a foreign spouse require a “marriage interview” to establish the validity of the marriage. During the first marriage interview in which I represented a same sex couple, the immigration officer was gracious and handled the interview just as any other marriage interview is normally conducted. At the end of the interview (which was on a Monday morning) the immigration officer approved the application, turned to me and my clients smiling and said “This is a good way to start the week.”

Linda M Kaplan
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