Immigration benefits for the spouses of U.S. citizens and lawful permanent residents (LPRs) is one of the oldest immigration traditions in the United States. These benefits were limited to partners in heterosexual marriages, however, even for a few years after certain states began legalizing same-sex marriages, based in the idea that since immigration law is federal, the federal government was entitled to ignore state law-based classification of couples as “married” or “unmarried.” All of this changed in 2013, two years before same-sex marriage was legalized nationwide.
United States v. Windsor (2013)
In United States v. Windsor, decided on June 26, 2013, the U.S. Supreme Court ruled unconstitutional a portion of the Defense of Marriage Act (DOMA) that limited U.S. immigration benefits to opposite-sex couples only. The ruling in effect allowed a spouse in a same-sex marriage who is a U.S. citizen or LPR to sponsor a same-sex spouse for immigration to the United States on the same terms as an opposite-sex spouse, except for same-sex partners who were married in jurisdictions that prohibit same-sex marriages.
It is considered irrelevant where the couple actually lived at the time an immigration petition was submitted. If, for example, a same-sex couple was married in Massachusetts after it legalized same-sex marriage, it did not matter if the couple was living in a state that did not recognize same-sex marriages at the time the petition was submitted, or even if one or both spouses was living abroad in a country that did not recognize same-sex marriage.
Obergefell v. Hodges (2015)
With respect to marriages entered into in the United States, the jurisdictional exception mentioned above was rendered moot by the Supreme Court’s 2015 decision in Obergefell v. Hodges, which legalized same-sex marriages throughout the United States. Unfortunately, however, foreign same-sex spouses in marriages undertaken in foreign jurisdictions that do not recognize same-sex marriages remain ineligible for immigration based on marriage to a U.S. citizen or permanent resident.
Although couples married in jurisdictions that do not recognize same-sex marriages may appear to have “fallen between the cracks” of U.S. immigration law, it is still possible for such spouses to be sponsored for immigration by their spouse, provided that the couple re-marries in a jurisdiction where same-sex marriages is legal (in the U.S. on a fiancé visa, for example). Same-sex partners who were married in a jurisdiction where same-sex marriage is illegal and who cannot leave the jurisdiction for immigration, legal or financial reasons remain ineligible for U.S. immigration benefits based on marriage to a U.S. citizen or permanent resident.
The Road Ahead
The only remaining barrier to securing full immigration rights for same-sex couples is the prohibition against immigration sponsorship based on marriages that took place in jurisdictions where same-sex marriage remains illegal. A similar barrier might apply to a heterosexual couple who were married in a jurisdiction such as Malaysia, where a Muslim cannot legally marry a non-Muslim unless the non-Muslim partner converts to Islam.
Perhaps the U.S. will soon follow in the footsteps of Canada, which allows couples in this situation to immigrate as “common law partners” or “conjugal partners”, provided that these couples satisfy immigration officers that their failure to marry arose solely from local legal restrictions.
