On June 26, 2013, the Supreme Court of the United States issued a decision in United States v. Windsor. The Court ruled that a provision of the federal Defense of Marriage Act (DOMA), which had denied federal benefits to same-sex partners, is unconstitutional.
The legal impact of the Supreme Court’s ruling (discussed more fully in our recent eAuthority) means that same-sex spouses are now entitled to the same treatment under federal law as opposite-sex spouses. In the immigration context, same-sex spouses will now have access to immigration benefits. The focus of this post is the practical effect of this ruling for those individuals who may potentially benefit from its consequences.
In a statement released after the ruling, President Barack Obama announced that he had directed federal agencies to begin reviewing their practices to ensure that the Court’s decision, and its implications for federal benefits for same-sex legally married couples, are swiftly implemented. In response, Janet Napolitano, the Secretary of the Department of Homeland Security, stated that, effective immediately, the U.S. Citizenship and Immigration Services (USCIS) will begin reviewing immigrant visa petitions (i.e., permanent residence or “green card” sponsorship petitions) filed on behalf of same-sex spouses in the same manner as those filed on behalf of an opposite-sex spouse.
While USCIS has issued some guidance, the U.S. Department of State (DOS) has not yet publicly released any consular guidance or instructions as to how the Supreme Court ruling should be implemented. It would appear that foreign national same-sex spouses may apply at consulates for temporary dependent visas, but the outcome of those applications is not yet clear until the DOS issues policy guidelines.
Although it would appear that legally married same-sex partners should soon have equal access to immigration benefits following the Supreme Court’s decision, there are several questions that remain unanswered.
Exactly which immigration benefits are covered?
Both the Obama administration and the U.S. Department of Homeland Security (DHS) have officially recognized that same-sex couples are entitled to equal benefits under federal law. Pending implementation of the Supreme Court’s decision, same-sex spouses should be able to immigrate to the United States through both employment-based and family-based permanent residence processes and travel to the United States as dependent spouses of nonimmigrant visa holders, among other benefits.
However, the DHS guidance on the implementation of the Supreme Court’s ruling is incomplete, and simply states that that legally married same-sex couples are permitted to file petitions for immigrant visas and that those applications will no longer be automatically denied because the partners are of the same sex. This guidance is limited to family-based immigrant visa applications. No mention is made of employment-sponsored green card applications or nonimmigrant visa applications for foreign nationals coming to the United States on a temporary basis. This means that there is, as yet, no real direction from DHS regarding employment-based immigrant visa applications or temporary nonimmigrant derivative beneficiary applications.
When can petitions and applications be filed?
The Windsor ruling is effective immediately as of the date the decision was published. Nonetheless, from a practical standpoint, relevant federal agencies, including USCIS and the DOS, which oversee the adjudication of immigration benefits and U.S. visas at consular posts respectively, will need time to issue practical guidance to create the procedures necessary to implement this ruling and facilitate the processing of applications by same-sex couples.
USCIS officials, speaking at the June 2013 American Immigration Lawyers Association (AILA) national conference on immigration law clarified that they would not process any same-sex marriage visa petitions until such comprehensive guidance is developed. In addition, the officials stated that they were neither able to provide an estimated time frame for the development of this guidance nor advise when the adjudications process for petitions would begin. On June 27, 2013, during the AILA conference, USCIS Director Alejandro Mayorkas indicated that the U.S. Department of Justice is reviewing the Supreme Court’s decision to determine how it will impact various federal agencies and stated that the review would be conducted over the next couple of weeks. However, Mayorkas only mentioned the impact within the immigrant visa context and did not comment on nonimmigrant visas.
Until USCIS’s administrative procedures and rules for handling petitions for same-sex couples are in place, Ogletree Deakins can file petitions and applications for same-sex partner benefits on behalf of our clients. However, applicants should realistically anticipate that these applications may be delayed until guidance is developed.
What is the role of immigration authorities in determining the validity of same-sex marriages?
In addition to the necessary application procedures discussed above, there are several other open questions that need to be resolved. For example, will it be the role of consular officers or USCIS personnel to review foreign and U.S. state law to determine whether a marriage was valid in a particular jurisdiction? Under the Windsor ruling, a marriage is recognized as valid as long as it is sanctioned by the law of the U.S. state or foreign country in which the marriage arose. Will USCIS adjudicators and consular officers be expected to determine which U.S. states and foreign countries recognize same-sex marriage? We also anticipate confusion regarding how federal immigration agencies will interpret various marriage laws. Hopefully, the guidance that is being developed by the government will address these issues in more detail.
What is the status of pending immigration cases filed by same-sex couples?
There is an open question regarding the impact of the Supreme Court’s decision on same-sex benefit applications that were filed before the Windsor ruling was handed down. In his keynote address at the AILA conference, Mayorkas stated that, since February of 2011 when the Obama administration determined that DOMA was unconstitutional, USCIS has kept a log of all previously denied same-sex family-based immigrant visa petitions. We anticipate that there may potentially be relief for those cases that were negatively adjudicated.
On the other hand, the ruling will not immediately “fix” those situations for persons who previously entered the United States and overstayed their visas. In other words, the ruling might bring same-sex equality, but not preferential treatment. All same-sex partners are still subject to the same set of existing immigration laws, including restrictions and penalties.
Over and above these issues, same-sex couples will still face several challenges under U.S. immigration laws. Only a few U.S. states and foreign countries recognize same-sex marriage. In addition, civil unions or domestic partnerships do not currently appear to be covered by the Court’s Windsor ruling. Furthermore, same-sex couples may face increased scrutiny as to the bona fides of a same-sex marriage in family-based green card applications.
Though federal agencies have been instructed to accept same-sex filings immediately, individuals who may benefit from the ruling should anticipate that confusion on the part of federal authorities over the new directive, and lack of practical guidance in the administration of same-sex immigration benefits, will lead to delays and possible rejections and denials of visa applications as the government reviews the impact of the decision on existing law and develops guidance.
Ogletree Deakins is monitoring the procedural changes at USCIS and the DOS as a result of the Supreme Court’s Windsor ruling and will provide updates as further guidance on the implementation of the decision becomes available.
Nicole Brooks is the Immigration Client Resources Manager in the Raleigh office of Ogletree Deakins. Stephen H. Smalley is a shareholder in the Raleigh office of Ogletree Deakins, and he serves as the Managing Director of Emigra Ogletree Worldwide, a partnership of two leading firms, Ogletree Deakins and Emigra.