Section 3 OF DOMA is Unconstitutional
In Windsor v. United States, the Supreme Court of the United States ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. Section 3 of DOMA limited the definition of “marriage” for purposes of federal law to mean only a marriage between a man and a woman, and the word “spouse” to mean only a person of the opposite sex. The Windsor decision had an immediate impact on immigration law.
The Board of Immigration Appeals Implements Windsor
In Matter of Zeleniak, the Board of Immigration Appeals (BIA) recognized that the Supreme Court’s ruling in Windsor removed Section 3 of DOMA “as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated.”
Zeleniak involved a relative petition (I-130) filed by a U.S. citizen on behalf of his foreign born spouse. The petitioner and beneficiary were both male. The U.S. Citizenship and Immigration Services (USCIS) had denied the visa petition based on the restrictive definition of marriage in Section 3 of DOMA. The petitioner appealed the denial to the BIA. Based on Windsor, the BIA ruled that the couple’s marriage was valid for immigration purposes because the couple’s marriage was valid under the laws of Vermont, where the marriage took place.
The Windsor ruling, as already applied by the BIA in Zeleniak, applies to all the various provisions of the Immigration and Nationality Act conferring marriage-based benefits or relief, such as fiancé(e) visas, immigrant visa petitions, adjustment of status, and waivers of inadmissibility.
IMPACT: Same-Sex Married Couples Are Entitled to Marriage-Based Immigration Benefits and Relief
All immigration petitions and visa applications filed on behalf of a same-sex spouse will be adjudicated by the USCIS and U.S. embassies and consulates in the same way as those filed on behalf of an opposite-sex spouse. Immigration petitions and visa applications can no longer be denied because of the same-sex nature of the marriage.
You will be able to apply right away for immigration benefits for which you are eligible. You do not have to wait for USCIS to issue new regulations or guidance regarding the implementation of the Windsor decision.
If an I-130, or other petition or application was previously denied because of DOMA, you can reopen those cases.