Opening hours / Monday – Friday / 09:00 am – 5:45 pm

Call us now +1 212 219 3244

Bardavid Law

With DOMA Done, Same-Sex Spouses Will Finally Be Able to File Visa Petitions


A great decision for equality and justice

With today’s decision in U.S. v. Windsor, the Supreme Court confirmed what the majority of the world has known.  The Defense of Marriage Act served no purpose other than to discriminate.  The harm that it caused was very real and significant.  Among the thousands of benefits that same-sex spouses were denied was the right of a Lawful Permanent Resident or U.S. citizen to file a visa petition for their foreign-born spouse.  The result was simple: A straight spouse could stop his or her spouse from being deported where a gay spouse could not.  A straight spouse could bring his or her spouse to the U.S. from overseas where a gay spouse could not.

Justice Kennedy, writing for the majority, summarized his decision:

[blockquote width=’75’]

DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.[/blockquote]

Same Sex Spouses Can (or Will Soon Be Able to) File Petitions

As a result of today’s decision, one thing is clear: a U.S. citizen or Lawful Permanent Resident will be able to file a visa petition for his or her spouse, regardless of whether they are in a straight or gay marriage.  The only thing that is in doubt is whether the applications will be processed immediately by USCIS or if USCIS is going to wait for some regulatory language that requires amending as a result of today’s decision.  Regardless, if a person is otherwise eligible for a green card based upon being married to a USC or LPR, the days of our immigration laws discriminating on the basis of sexual orientation are finally over.  Lovers of justice and equality, rejoice!