July 8, 2013
Will the Obama administration allow same-sex married spouses to get green cards based on marriage to a US citizen or resident? All signs point to yes. The US Supreme Court made headlines last Wednesday when it struck down the Defense of Marriage Act (DOMA) and granted same-sex married couples access to the same benefits that opposite-sex married couples enjoy. Given Obama’s original campaign promise to uphold DOMA, there may have been some doubt as to how the Obama administration would actually administer the change. But same-sex couples can now breathe a sigh of relief thanks to the administration’s currently announced public stance.
DOMA, which was enacted in 1996 and signed into law by President Bill Clinton, has since been the obstacle that has prevented same-sex married couples from getting federal benefits that are available to opposite-sex married couples. This includes immigration benefits as well because DOMA is the reason why same-sex foreign nationals have been banned from getting green cards based upon marriage to a US citizen or permanent resident.
President Obama has shown that he can be a maverick when it comes to enforcing the law. Pursuant to federal statute, foreign nationals that reside here in the United States without legal status and who are otherwise ineligible for an immigration visa, are subject to removal. Yet, last year not only did Obama use his executive discretion to selectively not enforce that law in certain cases, he even went so far as to create the new Deferred Action for Childhood Arrivals (DACA) program based on his own authority as president. So, the question remained, how would Obama treat the court’s striking down of DOMA?
One of the original platforms of then Senator Barack Obama’s presidential campaign was to support DOMA, and he stated then that he intended to defend the definition of marriage as being between one man and one woman. Since becoming president, however, his position has changed and evolved to support same-sex marriage. In recent years, the Obama Justice Department has implemented its discretion not to enforce DOMA, and has even gone so far as to declare DOMA unconstitutional. The Department of State and the Department of Homeland Security have both recently announced that those federal agencies intend to fully support same-sex marriage and fully administer the court’s decision accordingly.
The US Department of State announced its support of the Supreme Court’s ruling. Secretary of State John Kerry issued a statement last week immediately after learning of the court’s decision. He said that when DOMA was passed by Congress in 1996, he voted against it then because he believed that DOMA was unconstitutional. Secretary Kerry said that the Department of State intends to work with the Department of Justice as well as other agencies in order to fully implement the court’s decision, including a review of all pertinent federal statutes. Kerry promised that the Department of State will work swiftly to implement changes so that same-sex married couples will have access to benefits regardless of sexual orientation.
Secretary of Homeland security Janet Napolitano announced on Tuesday July 2, 2013 that the agency will support the court’s decision and implement the changes swiftly and smoothly to ensure that same-sex married couples receive the same benefits as opposite sex married couples. Secretary Napolitano said that she has directed the US citizenship and Immigration Services (USCIS) to treat immigration visa petitions filed by married couples of the same-sex in the same manner as petitions filed by opposite sex couples.
The Obama administration and federal agencies seem to be making good on those promises. Only two days after the Supreme Court issued the landmark ruling, the USCIS approved the same-sex couple green card petition of American Julian Marsh and his husband, Bulgarian foreign national Traian Popov. Several same-sex marriage green card petitions have also been filed in anticipation of the Supreme Court ruling as well, which are still pending. Now, it is expected those petitions should be approved too, provided that they otherwise qualify of course.
There is virtually no doubt now that the Obama administration is fully committed in its support of same-sex marriage. Foreign nationals seeking green cards who are spouses of same-sex US citizens and US permanent residents who are otherwise eligible to file green card petitions based upon their marriages should take advantage of the current favorable climate and should file a family-based immigration petition if they are interested in doing so. Although this administration has given the green light, there is no guarantee that the climate will remain favorable and that the next administration will continue to do so.