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Death of Section 3 of DOMA Opens Immigration Benefits to Same-sex Couples

The Defense of Marriage Act, signed by President Bill Clinton in 1996, was a federal law that barred recognition of same-sex couples as spouses for the purpose of federal marriage benefits. Section 3 of the law prevented same-sex couples, even those who had been legally married in their state of residence, from receiving a host of benefits, which included insurance for government employees, social security survivors’ benefits, immigration, bankruptcy and the filing of joint tax returns.  Section 3 of DOMA defined marriage  as “a legal union between one man and one woman as husband and wife, and the word “spouse” refered only to a person of the opposite sex who is a husband or wife”. In the landmark case, United States v. Windsor, the U.S. Supreme Court declared Section 3 of DOMA unconstitutional under the due process clause of the Fifth Amendment. This decision essentially marked the death of Section 3 of DOMA and opened federal rights to married same-sex couples.

Although United States v. Windsor dealt with a tax controversy, its ruling eliminated any distinction between heterosexual and same-sex marriage in the area of immigration as well. Prior to the Windsor decision, DOMA prevented a U.S. citizen in a same-sex marriage from petitioning for a foreign national spouse. It also prevented a homosexual citizen from obtaining a K-1 visa for a same-sex fiancé(e). These limitations placed extreme hardships on same-sex couples who wanted to have a life together in the U.S.

Today, gay and lesbian U.S. citizens can sponsor their same-sex partners the same way heterosexual citizens do: by filing a family petition (I-130) for a foreign national spouse or a K-1 visa (I-129F) for a foreign national fiancé(e). This starts the process that leads to legal permanent residence for the foreign national.

Many individuals who are legally married to same-sex partners have received green cards following the Supreme Court decision on DOMA.

If you have questions about immigration rights for same-sex couples, come to Bretz & Coven, LLP for knowledgeable and courteous legal assistance. We can help facilitate the process, saving you time, frustration and expense. Call us today at 212-267-2555 or contact us online to schedule a confidential appointment.

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