Lemuel A. Carlos, Attorney at Law
With all of the negative news that seems to be surrounding immigration, it is hard to see that in some areas immigration law has seen some positive movement. One of the major areas is in immigration benefits for persons who are either engaged to or married to someone of the same sex.
On June 26, 2013, the United States Supreme Court issued its landmark decision regarding same-sex marriage in United States v. Windsor, 570 U.S. 744 (2013). In that case, the Court held that restricting U.S. federal interpretation of “marriage” and “spouse” to apply only to opposite-sex unions, by Section 3 of the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment. In the majority opinion, Justice Anthony Kennedy wrote: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
This very significant ruling enabled couples in same sex marriages access to the more than 1000 federal benefits available until then, only to heterosexual married couples.
This includes the right of a U.S. citizen to petition and sponsor a same sex spouse for legal immigration. Before this case was decided, it was impossible for someone who was married to someone else of the same sex to petition their foreign spouse. Now, not only is a visa petition based on marriage available to married persons of the same sex, however, fiancé/e visas are also available.
Though this ruling is a great victory for the LGBT community, it is important to point out that though attitudes in the United States have changed dramatically for the better, this may not be the case in the countries from where the same sex spouse is immigrating. The actual process may be fraught with worry and in some cases even danger to the foreign spouse or fiancé/e.
Since the law changed in 2013, our office has handled dozens same sex adjustments of status, marriage based visas and fiancé/e visas for married partners of the same sex. We have noticed that the local USCIS officers have been very professional and courteous with any and all same sex marriage adjustment interviewees. The report from most of my colleagues even in Manila is that consular officers likewise have demonstrated the same professionalism and courtesy when dealing with partners of the same sex.
Though Immigration Reform may not be happening any time soon and the news regarding immigration seems all gloom and doom, at least there has been some change for the better in immigration law with regard to the LGBT community and married partners of the same sex.