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LGBT Couples' Immigration Rights After The Supreme Court Decision

Wednesday 26 June 2013 is a day that will be marked as a momentous event in US history. Years from now, the case of United States v Windsor will continue to be viewed as a key turning point in the struggle for civil rights, one which affects not only LGBT individuals but society as a whole in the values that we seek to uphold.

On a more immediate and personal level, it's also the day that makes it possible for bi-national, same sex couples to not have to make the impossible choice between the love of their life and the love for their country, to not be split up across the continents like Jason and David, and allows 'love exiles' – the countless American citizens who have relocated outside the US borders in order to be with their loved one – like Brandon and Benn, to finally return home. There are thousands more individuals affected, as documented by the DOMA Project and Love Exiles, to name but a few.

The tone for this momentous event was set by President Obama during his inaugural speech in January 2013:

"We, the people, declare today that the most evident of truths –- that all of us are created equal –- is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth."

The case of United States v Windsor involves a same sex couple living in New York, where gay marriage is recognized, who got married in Canada, where same-sex marriage is also permitted. When Thea Spyer died, Edie Windsor inherited her spouse's estate but had to pay over $300,000 in federal taxes; if the couple had been an opposite sex married couple. Edie would not have had to pay anything. Gay and lesbian married couples used to be treated differently because of the Defense of Marriage Act (DOMA), a federal law which limited a valid marriage for federal purposes to those entered into between a man and a woman. As a result, LGBT couples were denied over 1,000 federal benefits, including the ability of a US citizen to sponsor his or her same-sex spouse for a 'green card'.

In striking down DOMA, Justice Kennedy, writing on behalf of the majority, says:

"DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples."

With DOMA declared unconstitutional, the barrier standing between LGBT couples and US immigration benefits has largely been removed. Bi-national, same sex couples who are legally married in a US state or foreign country which recognises same sex marriage can now seek a green card for the non-US citizen.

Janet Napolitano, Head of the Department of Homeland Security which, among other things, oversees US immigration matters, expressed her unconditional support for 'green card' and other immigration petitions filed by same sex married couples following Wednesday's decision:

"I applaud today's Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits. I am pleased the Court agreed with the Administration's position that DOMA's restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."

For the countless bi-national, same sex couples affected by DOMA, relief could not come soon enough. While the struggle for equality continues, we can all breathe a little easier knowing that the world is a better place today than it was at the beginning of the week.

The American Immigration Law Office welcomes gay and lesbian couples wishing to immigrate to the United States. Priding itself as a gay-friendly law firm, we would be delighted to assist with your US immigration matter.