Defense of Marriage Act (DOMA) and Immigration Law

Section 2 allowed states to refuse to recognize same-sex marriages granted under the laws of other states. If one state legalized same-sex marriage, other states weren’t obligated to recognize that marriage if a couple moved or traveled.
Section 3 defined marriage for federal purposes as the union of one man and one woman, meaning that same-sex married couples were denied all federal benefits and protections available to opposite-sex married couples. This provision impacted various federal benefits, including social security survivor benefits, immigration rights, and the ability to file taxes jointly.

However, the landscape of same-sex marriage rights in the U.S. evolved significantly after the enactment of DOMA:

In 2013, in the landmark case United States v. Windsor, the U.S. Supreme Court ruled that Section 3 of DOMA was unconstitutional, violating the Fifth Amendment. As a result of this decision, the federal government began recognizing same-sex marriages for federal benefits.
Then, in 2015, in the case of Obergefell v. Hodges, the U.S. Supreme Court ruled that the Fourteenth Amendment requires all states to grant same-sex marriages and recognize same-sex marriages granted in other states. This decision effectively made same-sex marriage legal in all 50 states.

After these rulings, DOMA was largely rendered moot. The progression of court decisions and changing societal attitudes towards LGBTQ+ rights in the U.S. have marked significant steps towards equality for same-sex couples.

What Is the Defense of Marriage Act (DOMA)?

The Supreme Court’s decision in Windsor (2013) questioned the constitutionality of DOMA because it prevented same-sex partners from being acknowledged by the federal government for federal law purposes.

In addition, it gave states the power to ban same-sex marriages and impacted the ability of many same-sex couples to claim marriage equality.

This was not the first time a U.S. court questioned DOMA’s provisions. In the Commonwealth of Massachusetts (2012), a First Circuit Court decided that DOMA violated the Tenth Amendment rights of individuals in same-sex relationships. The Act imposed a uniform definition for marriage which failed to recognize same-sex unions.

Same-sex couples who were legally married in another country or state were treated as single under U.S. federal laws making them unable to access the same federal benefits that their married peers enjoyed.

The provisions of the Act also violated the equal protection principles imposed on the federal government by the Fifth Amendment.

According to the equal protection laws, the fundamental rights of U.S. citizens must be protected by all states, including the rights of same-sex couples. However, these rights were not protected under the provisions of sections 2 and 3 of DOMA.

Obergefell (2015) was a landmark decision for individuals in same–sex unions. The judgment required all U.S. states to recognize same-sex marriage even if another state issued the marriage license. In 2022, DOMA was formally repealed with the passage of the Respect for Marriage Act, making it impossible for any state to ban same-sex marriage.

USCIS and Immigration Petitions for Same-Sex Couples

Following Obergedell, The Department of Homeland Security, through the U.S. Citizenship and Immigration Services (USCIS), reviewed its regulations in line with the Supreme Court’s ruling to allow immigration visa petitions to be filed on behalf of a same-sex spouse.

The filing is done in the same manner as those filed on behalf of the spouse of the opposite sex, and the applications are treated equally.

A person’s eligibility to sponsor their same-sex partner and their partner’s admissibility is determined by the immigration laws applicable under the route through which they made their application.

The same-sex couple’s marriage must be considered legal in their home country before being considered married under U.S. immigration law.

In cases where the foreign spouse’s home country does not support same-sex marriage, individuals can travel to get married in a country that does.

The U.S. citizen spouse can arrange for their fiance to visit the U.S. through a K-1 fiancé visa. However, they must get married within ninety days after the fiance arrives in the U.S. After the marriage, the foreign spouse can adjust their status to a permanent resident and receive their green card.

The repeal of DOMA has opened up many more opportunities for same-sex couples looking to start a life together in the U.S. However, with changing immigration laws, it is essential to consult an experienced attorney before making any decisions regarding immigration status. Immigration law contains many nuances, and a qualified attorney can ensure that all potential issues are considered before filing any immigration paperwork.

Same-Sex Marriage and Applying for Federal Benefits

Same-sex couples can access the same federal benefits as heterosexual couples regardless of their sexual orientation. Some of these benefits include:

Dental and Vision Insurance;
Divorce and Parental Rights;
Family and Medical Leave;
Health Insurance;
Inheritance Rights;
Life Insurance;
Long-term Care Insurance;
Marital Tax Breaks;
Property Rights;
Retirement Benefits;
Social Security Benefits;
Veteran Benefits.

How Do You Prove a Legally Valid Same-Sex Marriage?

Same-sex spouses can now apply for immigration benefits, including a marriage green card, by filing a Form I-130 petition. After they have met all the eligibility conditions required by the USCIS, they must prove that their marriage is legally valid and bonafide.

Some supporting documents that the consular officer may request to prove a genuine same-sex marriage include:

Birth certificates for the couple’s children;
Affidavits by third parties who have personal knowledge of their relationship;
Photographs with family.

However, some same-sex couples may be uncomfortable exposing their sexual orientation to family and friends. As a result, they may have little or no intimate photos together and may have no evidence of joint ownership of property.

This may affect their ability to convince the USCIS officer that their relationship was entered in good faith. An experienced immigration lawyer can provide guidelines for avoiding such situations and discuss your case with you to determine a possible course of action.

Further, a marriage reviewed by the USCIS for an immigration benefit must not contradict federal public policy (e.g., a polygamous marriage). Individuals must terminate all previous marriages through a divorce or annulment.

Same-sex couples in civil unions will not be deemed married for federal benefits until legally married.

Same-Sex Marriages and Residency Requirements

Like a heterosexual marriage, same-sex marriage with U.S. citizens reduces the residency period required for naturalization. Lawful permanent residents need five years of residence in the U.S. before applying for naturalization.

However, in the case of U.S. citizens in same-sex marriages with foreign nationals who have been green card holders for three years, the foreign spouse can file for naturalization through the union.

How Can an Attorney Help?

Immigration laws and regulations can be complex and challenging to navigate. An experienced immigration attorney familiar with the Defense of Marriage Act (DOMA) and its repeal, as well as other immigration laws concerning same-sex couples, can provide invaluable assistance in helping you to understand your rights and obligations under U.S. immigration law. From filing petitions to arranging necessary documents for visa applications, an attorney can guide you through the process and ensure that all the steps are taken for a smooth application.

Andrew T. Thomas, Attorneys at Law Can Help With Your Same-Sex Marriage Issues

Considerable measures have been taken to legalize same-sex marriage in the U.S. Individuals in same-sex relationships are entitled to the same rights and privileges under U.S. immigration law. Unfortunately, however, same-sex couples are usually victims of discrimination.

Andrew T. Thomas, Attorneys at Law, are leaders in law, and we can help you take necessary legal action in court. We can also help you understand your rights and the protections under immigration law.

Further, our lawyers are accustomed to handling some of the most complex same-sex immigration matters and are dedicated to providing clients with the attention and service they deserve.

Suppose you are looking for an immigration attorney in Texas (Dallas, Houston, Forth Worth, or San Antonio) to advise you on the green card categories available to same-sex couples. Consult Andrew T. Thomas, Attorneys at Law, today!