End of DOMA Affords Visa Rights for Same-Sex Couples

The recent Supreme Court case of the United States v. Windsor that struck down a key provision of the Defense of Marriage Act (“DOMA”) has been a landmark decision for the rights of same-sex couples. While there are some clear, highly publicized impacts of the decision, the legal implications of the decision are much broader than many people realize. The now unconstitutional provision of DOMA defined marriage as one between one man and one woman. As such, DOMA previously blocked the recognition of same-sex couples at the federal level. This included the validity of same-sex marriages for the purpose of immigration. So-called “sponsor visas,” or those brought by one U.S. citizen on behalf of their foreign spouse, were automatically denied for same-sex couples. The repeal of DOMA now affords same-sex couples the ability to apply for these sponsor visas.

Currently, there are an estimated 36,000 same-sex couples in the United States with one partner that is not a U.S. citizen. Already, in light of the recent Supreme Court ruling, many of those couples have applied for sponsored visas with the U.S. Citizen and Immigration Service (“USCIS”).

In order to apply for an immigrant visa, couples must (1) complete relevant forms with the USCIS, (2) submit a medical evaluation for the spouse applying for the visa, (3) demonstrate that the foreign spouse will not present a financial burden to the U.S., (4) prove that the foreign spouse has entered into the country legally, and (5) complete an interview showing that the couple is in a bona-fide marriage. If the visa is granted, and provided that the marriage is still intact, the applicant can then apply for U.S. citizenship in three years. This is the same process by which heterosexual couples obtain support visas that was previously denied to same-sex couples.

Special thanks to Sara E. Myirski for her assistance with this post.

Any questions? Please contact Amanda Lavis