Immigration Benefit Through Same Sex Marriage
I. INTRODUCTION
On June 26, 2013, the U.S. Supreme Court issued a landmark decision in United States v. Windsor, holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. The Court struck down Section 3 of DOMA, which defines the term “marriage” as a union between a man and a woman for purposes of all federal statutes and federal agency regulations and rulings. Shortly after issuance of the decision, Department of Homeland Security (DHS) Secretary Janet Napolitano stated that DHS would take steps to implement the ruling and ensure that “all married couples will be treated equally and fairly.”
II. The U.S. Marriage Equality States
As of June 2013, thirteen states California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, the District of Columbia and five Native American tribes have legalized same-sex marriage.
III. Immigration Law and Marriage
There are a number of immigration benefits and forms of relief from removal that depend on the existence of a valid marriage. Thus, the validity of a marriage can be an issue in an affirmative application for an immigration benefit filed with USCIS or DOS or in an application for relief from removal filed with an immigration judge (IJ).
The following are examples of immigration benefits and forms of relief that are dependent on the existence of a marriage.
- Adjustment of status or consular processing based on a family-based visa petition
- Adjustment of status or consular processing based on being a derivative of a beneficiary of a visa petition (family-based or employment-based)
- Cancellation of removal requiring a qualifying relative
- Waivers that require a qualifying relative and unlawful presence waivers
- Derivative beneficiary of an asylum application
- Derivative beneficiary of a nonimmigrant visa
- Fiancé/e petition
- VAWA self-petition
If you have more questions, contact our office via email at Jeongyunjo@gmail.com or call at 917 993 4917.
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