Published on:

How the Supreme Court’s Same-Sex Marriage Rulings Affect Immigration to the United States

By Ted Eytan from Washington, DC, USA (SCOTUS Marriage Equality 2015 58151) [CC BY-SA 2.0 (], via Wikimedia CommonsThe U.S. Supreme Court issued a historic ruling in June 2015 that effectively allows same-sex marriage in all 50 states. Obergefell v. Hodges, 576 U.S. ___ (2015). The court held that laws in 14 states banning the recognition of marriages between two people of the same sex violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Obergefell will not have much direct impact in New York and New Jersey, which have allowed same-sex marriage since 2011 and 2013, respectively. The federal government has also formally recognized same-sex marriage since the Supreme Court’s ruling in United States v. Windsor, 570 U.S. ___ (2013). It is not yet clear exactly how Obergefell will affect the U.S. immigration system, except that it will most likely remove the necessity of distinguishing among different states’ laws relating to marriage.

Marriage is considered a state law matter in the U.S., although the federal government takes marital status into account in numerous programs, including immigration benefits. The U.S. Congress enacted the Defense of Marriage Act (DOMA) in 1996, which defined “marriage” exclusively as “a legal union between one man and one woman as husband and wife” for the purposes of federal laws and programs. 1 U.S.C. § 7, 28 U.S.C. § 1738C. The Supreme Court ruled in Windsor that DOMA violated the Due Process Clause of the Fifth Amendment.

After the Windsor decision, the White House directed federal agencies, such as U.S. Citizenship and Immigration Services (USCIS), to treat immigration petitions and applications filed for a same-sex spouse the same as those filed for opposite-sex spouses. This includes immigrant visa petitions filed by U.S. citizens and legal permanent residents on behalf of spouses, as well as derivative nonimmigrant visas, such as H-4 visas for spouses of H-1B specialty workers and F-2 visas for spouses of F-1 students.

The validity of a marriage, for immigration purposes, is generally determined based on whether it was legal in the jurisdiction in which the marriage took place. This is known as the “place-of-celebration rule.” Some exceptions to this rule, which would not be considered valid marriages under U.S. immigration law, include polygamous marriages and marriages whose sole purpose is to obtain immigration benefits. After Windsor, same-sex marriages that were legal in the jurisdiction where they took place were considered legal by immigration authorities.

The K-1 fiancé(e) visa presented an unusual dilemma after Windsor, but before Obergefell. This visa allows the fiancé(e) of a U.S. citizen to come to this country to get married. The couple is not required to live in the U.S. afterwards but may apply for a green card if they want. One of the eligibility requirements for a K-1 visa is the legal ability to marry, which includes factors like age and proof that any prior marriage has terminated. It also meant that a person engaged to a U.S. citizen of the same sex could not qualify for a K-1 visa unless they could demonstrate that the marriage would take place in a state that allowed same-sex marriage. Obergefell has eliminated this issue.

Green card attorney Samuel C. Berger practices in the New York City and Northern New Jersey areas. We represent people who want to immigrate to this area, or who have already made this area their home and want to adjust their immigration status. We also help families and employers petition on behalf of a loved one or employee. To schedule a confidential consultation with a knowledgeable and experienced immigration advocate, contact us today online or at (212) 380-8117.

More Blog Posts:

U.S. Supreme Court’s Ruling Striking Down the Defense of Marriage Act Has Profound Impact on Binational Same-Sex Couples Seeking Immigration Benefits, New York & New Jersey Immigration Lawyer Blog, August 9, 2013

Same-Sex Marriage Gives Man a Reprieve from Deportation, but No Legal Rights, New York & New Jersey Immigration Lawyer Blog, April 13, 2012

Immigration Officials Allow Man on Tourist Visa to Stay in New York to Care for His Ailing Partner, New York & New Jersey Immigration Lawyer Blog, February 16, 2012

Photo credit: By Ted Eytan from Washington, DC, USA (SCOTUS Marriage Equality 2015 58151) [CC BY-SA 2.0], via Wikimedia Commons.