July 7, 2013, Newark, NJ- Within hours of the Supreme Court’s historical DOMA ruling on June 26th, same-sex couples across the country were extended immigrations rights which were previously reserved for heterosexual married couples.
On the same day Supreme Court ruled the Defense of Marriage Act was unconstitutional, a gay man, who is legally married to an American citizen, was granted a deferral for deportation from a New York immigration court. This legally married same-sex couple would be the first of many to receive immediate immigration rights.
The Defense of Marriage Act or DOMA defined marriage as a union exclusively between a man and a woman. The law meant the federal government was not allowed to grant marriage-based visas, green cards or deportation deferments to immigrants married to a member of the same-sex even if their union was legally recognized.
On Friday, June 28th, just two days following the pivotal Supreme Court decision, a Bulgarian immigrant received the first green card granted to a same-sex couple in the United States. Traian Popov and his American-born spouse Julian Marsh were out to dinner celebrating Marsh’s birthday in their hometown of Fort Lauderdale, Florida when they got the great news about Popov’s green card, the New York Times reported.
Mr. Popov was able to stay in the country for 15 years by renewing his student visa, but now since he has been granted a green card he will be able to finish his doctorate and obtain legal employment.
Popov and Marsh were the first same-sex couple to receive a marriage-based green card, but now with DOMA gone thousands of loving gay couples will be given the same immigration privileges as straight couples which include marriage-based green cards and deportation deferrals.
The federal government and courts responded “swiftly” to the DOMA ruling as President Obama instructed and the USCIS began extending immigration rights to same-sex couples across the country.
In a statement issued just two days after DOMA was overturned, Department of Homeland Security Secretary Janet Napolitano said, “I have instructed the United States Customs and Immigration Services to review visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of opposite-sex spouse.”
The Department of Homeland Security also states they will consider all same-sex petitions in states that don’t recognize gay marriage. According to the DHS directive, which is available on their website, the agency “will look at the law where the marriage took place when determining whether it is valid for federal immigration purposes.” This is fantastic news to the hundreds of thousands same-sex couples who live in states where their marriages are not legally recognized.
The DHS, however, did not state whether they would honor K-1, or fiancé visa petitions. The federal recognition of gay marriage is so new that many issues will have to be worked out in the future, either through federal directives or litigated in the courts.
My experience with immigration law leads me to believe that same-sex couples should be eligible for K-1 fiancé visas as long as they meet the general requirements outlined by the USCIS.
I am paying close attention to our changing immigration system. The DOMA ruling and the pending immigration reform bill will create confusion and immigrants will need help navigating the changing landscape of our immigration laws. My clients are my priority and I won’t give up on your case until we are successful.
If you need help with any immigration issue, whether it is a fiancé visa, marriage based-green card or a deportation defense call me at my Newark office.
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