Category: Same Sex Couples

BIA Rules that DOMA is no Longer a Bar to the Approval of Same-Sex Petitions

In a decision issued on Wednesday, the BIA remanded an immigrant visa petition to the District Director because DOMA is no longer a bar to the approval of same-sex petitions. In Matter of Zeleniak26 I&N Dec. 158 (BIA 2013), a United States citizen petitioned for his spouse. The District Director denied the petition in 2010 and he appealed to the BIA. The BIA remanded the petition to address some issues, the Director issued a second denial and the Petitioner appealed the second denial. 

The Director had ruled that the same-sex couple had a valid marriage but the petition could not have been approved because of Section 3 of DOMA, which prohibited immigration benefits to same-sex couples. In remanding the petition to the District Director, the BIA reasoned that the Supreme Court’s ruling in U.S. v. Windsor, 133 S. Ct. 2675, 2695-96 (2013), removed the former prohibition under Section 3 of DOMA to the approval of same-sex immigration petitions. Thus, the BIA remanded the petition to the District Director for further consideration.


This is a monumental decision, since the decision is binding on USCIS when adjudicating immigrant visa petitions. It is also binding on all immigration judges around the nation.  These are the first effects of the Supreme Court’s decision which will affect the ways that immigration practitioners will tackle immigration cases. 

USCIS Issues Guidance on Implementation of the Supreme Court’s DOMA Decision

USCIS has issued guidance on the implementation of last week’s Supreme Court decision striking down the Defense of Marriage Act. The guidance tells adjudicators to treat same-sex couples the same as heterosexual couples in immigration petitions. This guidance came after Secretary Napolitano directed USCIS yesterday to treat the petitions equally.
This comes on the heels of the approval of the first adjustment of status petition for a same-sex couple in Ft. Lauderdale, FL.  This is great news!!!!

The Impact of Supreme Court’s Upcoming Decision on Same-Sex Couples

As we await the Supreme Court’s decision regarding same sex marriage laws and California’s proposition 8, I thought I should post some notes on the potential implications of such decision in the immigration arena. Regardless of what the Supreme Court rules, the decision will sure have important implications on same sex couples with at least one immigrant partner. 
Under the current law, the Defense of Marriage Act denies federal benefits, including immigration benefits, to same sex couples. In other words, a partner in a same sex couple can not petition for another partner in a same sex relationship. This is an unfortunate limitation, especially in abusive relationships where one partner might be abusing another, and the immigrant partner is left with little or no recourse to stay in the United States. For example, the current law does not allow an abused partner to apply for benefits under the Violence Against Women Act, but might allow the alien to be the beneficiary of a U visa, which is a visa specifically allocated to victims of crimes. However, due to the reluctance of law enforcement to certify these petitions, and the potential dangerous implications on the abused spouse the chances for such a visa dwindle, and a abused partner might have no recourse at all when it comes to immigration benefits. One of the best things regarding VAWA is that the petition is reviewed by special agents at the Vermont Service Center, with the highest levels of confidentiality and protection. These same safeguards do not exist in the U visa procedures, and the abused spouse might have to testify against the abusive one. We all know the potential dangers that come with such testimony. These dangers will lead the abused spouse to stay away from reporting the abuse and will ultimately lead to a denial of immigration benefits. 
The Supreme Court’s ruling will be cataclysmic decision when it comes to federal benefits for same sex couples under federal law. I believe that the current law is unfair and should be struck down, since it creates two groups that are not equal under the law. I hope that the Supreme Court will do the right things and strike down DOMA. I just read on CNN that the decision will be announced tomorrow; I am keeping my fingers crossed.