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DOMA is a federal statute that allows states or territories of the United States (US) to reject the validity of public acts, records, or legal proceedings from other states or territories that recognize same-sex marriages.
DOMA’s definition of marriage recognizes only a legal union between a man and a woman who are husband and wife. It also defines a spouse as a person of the opposite sex who is a husband or a wife.
The Supreme Court’s decision in Windsor (2013) questioned the constitutionality of DOMA because it prevented gay and lesbian couples 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 US 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 US 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 US 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 US 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 In 2022, DOMA was formally repealed with the passage of the Respect for Marriage Act, making it impossible for any state to ban same-sex marriage.
Following Obergedell, The Department of Homeland Security, through the US Citizenship and Immigration Services (USCIS), reviewed its regulations in line with the Supreme Court’s ruling to allow for 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 US 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 US citizen spouse can arrange for their fiance to visit the US through a K-1 fiancé visa. However, they must get married within ninety days after the fiance arrives in the US.
Same-sex couples can access the same federal benefits as heterosexual couples regardless of their sexual orientation. Some of these benefits include:
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:
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.
Like a heterosexual marriage, same-sex marriage with US citizens reduces the residency period required for naturalization. Lawful permanent residents need five years of residence in the US before applying for naturalization.
However, in the case of US 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 marriage.
Considerable measures have been taken to legalize same-sex marriage in the US. Individuals in same-sex relationships are entitled to the same rights and privileges under US 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!