U.S. SUPREME COURT DECISION ALLOWS SAME SEX COUPLES TO FILE GREEN CARD PETITIONS FOR THEIR SPOUSES
The decision of the US Supreme Court today (June 26, 2013) to strike down the Defense of Marriage Act or DOMA as unconstitutional because it violates the 5th Amendment Equal Protection Clause of the Constitution has a profound impact on same sex couples in the context of immigration law.
The ruling of the Supreme Court effectively allows same sex couples to receive federal benefits meaning A U.S. CITIZEN OR LEGAL PERMANENT RESIDENT CAN NOW PETITION THEIR FOREIGN BORN SAME SEX SPOUSES FOR PERMANENT RESIDENCY OR GREEN CARD.
Minutes after the Supreme Court ruling, an Immigration Judge in the New York district immediately stopped the deportation proceedings of a gay man from Colombia who is legally married to a U.S. Citizen. Prior to the Supreme Court ruling, DOMA only recognizes a marriage between a man and a woman; so when Sean Brooks filed a green card petition for his Colombian spouse Steve, it was denied by the U.S. Citizenship and Immigration Services (USCIS) because the marriage was not recognized by the USCIS under DOMA placing Steve in deportation proceedings.
The ordeal for the couple started in 2011 when Sean, the American citizen tried to file a green card petition for his husband based on their same-sex marriage. This left Steven in a visa limbo and vulnerable to deportation. Steven, who had not been back to Colombia for twelve years, applied to have his deportation cancelled based on the hardship that his deportation would incur on his spouse. The request was denied because federal law does not let the immigration judge recognize their marriage as valid (Source: Esther Yu-Hsi Lee, The DOMA Project).
As seen in the immediate cessation of Steve’s deportation, the ruling has a profound impact on the gay and lesbian community, not least of which 24,700 other binational same-sex couples can now breathe a sigh of relief, knowing that they will not be torn away from the people they want to spent the rest of their lives with. For a population of about 267,000 undocumented gays and lesbians, the Supreme Court ruling comes as a future goal post to look forward to now that federal laws has ended the discrimination against their right to marry. It also will finally allow the federal government to treat all gay and lesbian families equally by allowing them access to federal benefits and protections.
WHAT SHOULD SAME SEX COUPLES PREPARE TO DO WHILE WAITING FOR USCIS to implement the new law allowing their US Citizen spouses to file for green cards for their foreign born husbands or wives?
It will most certainly take at least (90) days to implement the new law so in the meantime, same sex couples should start gathering proof of their marriage such as: marriage certificate, pictures of the marriage and family gatherings or trips, joint bank accounts, joint property ownership such as cars or a home, leases under both names, cell phone bills under both names, money remittances or bank transfers to spouses or partners and insurances naming a spouse or partner as beneficiary.
Sources: New York Times, The Washington Post, The DOMA Project, C-SPAN, supremecourt.gov
Attorney SID GARBANZOS is a graduate of the City University of New York School of Law and is admitted to practice in New York and Washington, D.C. Practice areas include: Bankruptcy, Civil Litigation, Landlord-Tenant, Criminal Defense and Immigration, Please note that this article is written for a gratuitous purpose only and no attorney-client relationship is created in this publication. This article is not, nor intended to be legal advice. The reader should consult with a reputable lawyer based on his or her individual circumstances. Please call Garbanzos Law Firm at (718)725-7324 if you have any questions about this article.
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