The 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.