Saturday, August 17, 2013

Federal Law Recognizes Same Sex Marriage

On June 26, 2013, the Supreme Court of the United States issued a decision in United States v. Windsor. The Court ruled that a provision of the federal Defense of Marriage Act (DOMA), which had denied federal benefits to same-sex partners, is unconstitutional.The implication of this ruling is that same-sex spouses are now entitled to the same treatment under federal law as opposite-sex spouses, one example of which is immigration benefit.  

Although this Windsor ruling is effective immediately as of the date the decision was published, many practical quesitons remain unanswered. 

First, exactly what benefits are covered?  Whether the same sex spouses can be derivatives of employment-base immigration is pending the implementation of the Supreme Court. 

Secondly, when review will start.  From a practical standpoint, relevant federal agencies, including USCIS and the DOS will need time to issue practical guidance to create the procedures necessary to implement this ruling and facilitate the processing of applications by same-sex couples. Before that is done, the officers' hands are tied. 

Overall, although federal agencies have been instructed to accept same-sex filings immediately, same sex applicants should anticipate that confusion on the part of federal authorities due to lack of directive and practical guidance will lead to delays and possible rejections and denials of visa applications.