Can Same-Sex Couples Marry In New York And File For Immigration Benefits?

JUNE 28, 2013 UPDATE: The Supreme Court’s momentous decision in United States v. Windsor on June 26, 2013 has declared DOMA unconstitutional. Due to this progressive and humane decision, the Secretary of Homeland Security Janet Napolitano made this statement:

“I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits. I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

In addition, at the American Immigration Lawyer’s Association 2013 annual conference held in San Francisco, CA this week, USCIS Director Alejandro Mayorkas indicated that since February 2011, when the Administration opined on the unconstitutionality of DOMA, USCIS has kept a list of all I-130 petitions filed by same-sex binational couples that were denied, and is now prepared to act accordingly.

THUS, SAME-SEX BI-NATIONAL COUPLES SHOULD NOW BE ABLE TO FILE I-130 PETITIONS AND GET AN APPROVAL FROM USCIS. PLEASE CONTACT US IF YOU NEED MORE INFORMATION OR WOULD LIKE US TO ASSIST YOU AND YOUR SPOUSE TO FILE FOR LEGAL PERMANENT RESIDENCE BEFORE USCIS.

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On Friday, June 24, 2011, New York Governor Andrew Cuomo signed into law a bill permitting same-sex couples to be wed.  New York joins Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and Washington DC in this progressive grant in providing equal rights to all. As same-sex couples line up beginning July 24, 2011 to be married, what does this mean for immigration policy? Can an individual adjust their status to become a legal permanent resident after their same-sex spouse files an I-130 Petitions for Alien Relatives before U.S. Citizenship and Immigration Services?

Unfortunately, thus far, USCIS has consistently denied I-130 petitions filed by bi-national same-sex couples, legally married in the states with competent jurisdiction. The obstacle preventing USCIS in approving these I-130 Petitions is the Defense of Marriage Act, which was signed into law by President Clinton. DOMA has been under fierce attack by courts around the United States. Last year, a federal judge in Massachusetts declared the law unconstitutional as it applied to same-sex couples for issues like inheritance taxes and federal health and pension benefits. President Obama has expressed his opposition to DOMA. In February, Attorney General Holder stated that Section 3 of DOMA, which defines marriage for federal purposes as only between a man and a woman, should be subject to a more heightened standard of scrutiny, and is therefore unconstitutional. Specifically, AG Holder stated that, “[w]hile both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.”

What can President Obama do? The President must wait for the Supreme Court to make a constitutional finding on DOMA, but it is possible for President Obama to take intermediary actions. Specifically, a directive should be made to USCIS to accept same-sex filed I-130 Petitions in the context of adjustment of status to allow for employment authorization benefits and the grant of advance parole. Final approval of these petitions can be held in abeyance to await final judicial resolution.

Hopefully, the day when same-sex bi-national couples will be able to file I-130 petitions and get an approval will come soon enough.

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