On June 26, 2013 the United States Supreme Court in a 5-4 ruling, released its decision in the case of United States v. Windsor, holding that the Defense of Marriage Act is unconstitutional. Writing for the majority, Justice Anthony Kennedy stated that DOMA is unconstitutional because it sets same-sex couples apart in a way that violates the due process and equal protection principles guaranteed under the Constitution.
DOMA, which defined marriage as a union between a man and a woman, had prohibited the federal government from recognizing same-sex marriages for the purposes of any visa. Because of DOMA, tens of thousands of citizens in same-sex marriages had not been able to apply for green cards for their partners.
This decision affects the way that the federal government will handle same sex marriages between US citizens and immigrants. From an immigration standpoint, the U.S. Department of Homeland Security (DHS) will now recognize same sex marriages and issue green cards to married same sex couples either in the US or living abroad.
Secretary of Homeland Security Janet Napolitano stated, “After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
USCIS officials have stated that the agency has kept a list of same-sex couples whose green card petitions were denied over the past two years, anticipating that the Supreme Court would eventually weigh in on DOMA. Those denials will now be reversed without couples having to present new applications, as long as no other issues have arisen. Same-sex couples that have not yet filed will have their petitions move through the system at the same pace as traditional couples.