Immigration Benefits for the Same-Sex Couples

By: ekaterina

A kind of a forgotten stepchild between two social justice movements, same-sex marriages between U.S. citizens and immigrants may be more than simple companionship should the Supreme Court strike down the federal Defense of Marriage Act, otherwise known as DOMA. The 1996 federal law was designed to prohibit spousal benefits to the same-sex partners. Should it be revoked, it will become possible for the U.S. citezens or permanent residents to sponsor their same-sex immigrant spouses for a permanent residency in the U.S. (the same way it works in case of traditional marriages).

When Congress passed DOMA it became clear that same-sex couples could not have the same benefits as traditional families consisting of a man and a woman enjoy. Particularly, spouses of the same sex could not use tax benefits available to the families, pass on estate tax savings should the death come to one of them, and retain other spousal rights, such as retirement and housing privileges. That also meant an immigrant could not gain permanent residential status (a green card) when married to a U.S. citizen or permanent resident of the same sex.

Two cases now loom large in the possible loosening of these 1996 restrictions. The Supreme Court in the second week in June 2013, listened to two major cases in the DOMA zone. In Hollingsworth v. Perry, the justices were reviewing the California’s controversial Proposition 8 that banned same-sex marriages. In United States v. Windsor, the justices considered arguments against the federal law banning benefits for the same-sex partners in marriage.

Several factors seem to align for the Supreme Court in favor of overturning some laws that deny immigration benefits, including family sponsorship for a green card, to the same-sex couples. States rights arguments appear powerful to conservative justices, who may well side with more liberal justices. It will constitute the majority opinion that may strike down the law. Another factor is the rapid acceptance of the same-sex marriage among the general public. The recent polls show that a majority of Americans believe persons of the same sex should be allowed to marry and enjoy spousal benefits.

The good news for the same-sex couples is that, should the law be stricken, an immigrant married to a U.S. citizen or permanent resident of the same sex will be allowed to obtain that all-important green card, following the same process as traditional couples do. It will also fast-track the naturalization process, taking three years instead of five before a green card holder can apply for a citizenship in case of the marriage. Children under 18 years old of the couple will be considered step-children of the citizen and automatically qualify for the citizenship.

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