Slides From NAFSA's August 1 Virtual Brown-Bag on U.S. v. Windsor.
On June 26, 2013, the Supreme Court of the United States (SCOTUS) held in United States v. Windsor that the Defense of Marriage Act (DOMA) “is unconstitutional
as a deprivation of the equal liberty of persons that is protected by the Fifth
Although the holding in U.S. v. Windsor will have implications for immigration
benefits that derive from a marital relationship, the federal agencies involved
in the immigration process must first implement the decision in their policies
and procedures. They have gradually begun to do so. Here is what the
Departments of State (DOS) and Homeland Security (DHS) have stated so far:
- June 26, 2013 DOS statement: "To fully implement the requirements and implications of the Court’s decision, we will work with the Department of Justice and other agencies to review all relevant federal statutes as well as the benefits administered by this agency. We will work to swiftly administer these changes to ensure that every employee and their spouse have access to their due benefits regardless of sexual orientation both at home and abroad."
- June 28, 2013 DOS statement: "Now that the Supreme Court has found key aspects of the Defense of Marriage Act (DOMA) unconstitutional, the President has directed the Attorney General to work with other members of his Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly. The Department of State is working with the Department of Justice to review all relevant federal statutes and regulations that affect visa processing and immigration benefits. We recognize the significance of this decision for affected families, and we are working to interpret the decision and implement policy and procedural changes as soon as possible."
- August 2, 2013 DOS FAQs: The Department of State posted updated FAQs relating to the issuance of nonimmigrant visas for same sex married couples and dependents.
- "Q: Can same sex couples now apply for visas in the same classification?
Yes. Starting immediately, same-sex spouses and their children are equally eligible for NIV derivative visas. Same-sex spouses and their children (stepchildren of the primary applicant when the marriage takes place before the child turns 18) can qualify as derivatives where the law permits issuance of the visa to a spouse or stepchild. In cases where additional documentation has always been required of a spouse applying with a principal applicant, such documentation will also be required in the case of a same-sex spouse (see below)."
- "Q: Are there nonimmigrant visa classifications which will require approval of certain documentation before an interview can take place?
Yes. Same-sex spouses and stepchildren (F-2 and M-2) of student (F-1 and M-1) visa applicants will need to obtain an I-20A prior to application. Spouses (J-2s) of exchange visitors (J-1) visa holders will need an approved DS-2019. Finally, same-sex spouses of victims of criminal activity (U-2s) and human trafficking victims (T-2s) will require completed Supplement A to Form I-918 or I-914, respectively, before an officer approves any derivative cases. This additional documentation is also required for opposite gender spouses."
- August 2, 2013, 9 FAM Transmittal Letter VISA-2011: The Department of State Visa Office notified consulates through a Change Transmittal that reference to the Defense of Marriage Act has been removed from Volume 9 Section 40.1 Note 1.1.
- In the August, 2013 Notes from the Chief's Desk sent to exchange program sponsors on September 4, 2013, the DOS Exchange Visitor Program reposted an earlier message from the Bureau of Educational and Cultural Affairs (ECA) authorizing the issuance of Forms DS-2019s to same-sex spouses of J-1 exchange visitors. The ECA message stated, "The Supreme Court ruled on section 3 of the Defense of Marriage Act (DOMA) on June 26, 2013, striking it down as an unconstitutional deprivation of the equal liberty of persons that is protected by the Fifth Amendment. As a result of this decision, the President directed the Attorney General to work with other members of his Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, was implemented swiftly and smoothly. Effective immediately, sponsors are advised that they should issue DS 2019's to same-sex spouses of exchange visitors in the same manner that they issue them to opposite-sex spouses."
- June 26, 2013 DHS statement: "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."
- July 1, 2013 DHS statement regarding family-based immigrant visa petitions (also followed by 2 FAQs): "After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse."
- July 17, 2013 Matter of Zeleniak decision: The Board of Immigration Appeals (BIA), in its first post-Windsor decision, held that "Section 3 of the Defense of Marriage Act, Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated." The case was decided in the context of an I-130 immigrant visa petition filed by a U.S. citizen on behalf of a same-sex spouse.
- July 26, 2013 USCIS Updated FAQs provide greater detail on family-based I-130 petitions, and for the first time mention applicability of the Windsor decision to nonimmigrants. One FAQ reads: "Q6. What about immigration benefits other than for immediate relatives, family-preference immigrants, and fiancés or fiancées? In
cases where the immigration laws condition the benefit on the existence
of a “marriage” or on one’s status as a “spouse,” will same-sex
marriages qualify as marriages for purposes of these benefits?
A6. Yes. Under the U.S. immigration laws, eligibility for a wide range
of benefits depends on the meanings of the terms “marriage” or
'spouse.' Examples include (but are not limited to) an alien who seeks
to qualify as a spouse accompanying or following to join a
family-sponsored immigrant, an employment-based immigrant, certain
subcategories of nonimmigrants, or an alien who has been granted refugee
status or asylum. In all of these cases, a same-sex marriage will be
treated exactly the same as an opposite-sex marriage."
You will see that these announcements appear to be incremental, relating to
specific benefit types. Until the Departments of State (DOS) and Homeland Security
(DHS) clarify how the decision will impact their policies and procedures for
specific types of benefits, school officials and sponsors should consider
consulting with their general counsel on strategies for responding to individual
inquiries on how immigration benefits for same-sex couples might change, and
on the role of the school in facilitating requests for those benefits. Individuals
who wish legal advice about how US v. Windsor might affect their personal eligibility
for marriage-based immigration benefits (both nonimmigrant and immigrant) can
be referred to experienced legal counsel.
In the meantime, agency policies that incorporate the Defense of Marriage Act
by reference should be monitored to see how the agencies implement the US v.
Windsor decision. Policies that may be impacted by the decision include:
USCIS. U.S. Citizenship and Immigration Services Adjudicator’s
Field Manual Section 21.3(a)(2)(I) currently provides:
(I) Same Sex Marriages.
Whether an alleged marriage is valid for purposes of immigration is a question
of Federal law, not of State law. In 1996 Congress clarified the Federal law
concerning recognition of marriage by enacting the Defense of Marriage Act,
Pub. L. No. 104-199, 110 Stat. 2419 (1996). Pub. L. 104-199 provides a statutory
definition of "marriage", and of the concomitant term, "spouse".
Section 7 of the Defense of Marriage Act (Pub. L. 104-199) states:
Sec. 7. Definition of ‘marriage’ and ‘spouse.’ In
determining the meaning of any Act of Congress, or of any ruling, regulation,
or interpretation of the various administrative bureaus and agencies of the
United States, the word ‘marriage’ means only a legal union between
one man and one woman as husband and wife, and the word ‘spouse’
refers only to a person of the opposite sex who is a husband or a wife.
For a relationship to qualify as a marriage for purposes of Federal Law,
one partner must be a man, and the other a woman. This definition applies
to the construction of any Act of Congress and to any Federal regulation.
USCIS, therefore, must administer the Immigration and Nationality Act in light
of section 7 of Pub. L. 104-199 and deny any relative visa petition (or any
other application for an immigration benefit) which is based on a same sex
DOS. Update: August 2, 2013, 9 FAM Transmittal Letter VISA-2011:
The Department of State Visa Office notified consulates through a
Change Transmittal Letter that reference to the Defense of Marriage Act has
been removed from Volume 9 Section 40.1 Note 1.1. For reference, that section used to provide:
9 FAM 40.1 N1.1 Marriage and Spouse Defined (CT:VISA-1985; 05-03-2013)
a. Section 3 of the Defense of Marriage Act (Public Law 104-199) states:
“The word ‘marriage’ means only a legal union between one
man and one woman as husband and wife, and the word ‘spouse’ refers
only to a person of the opposite sex who is a husband or a wife.”
b. The term “marriage” is not specifically defined in the INA;
however, the meaning of marriage can be inferred from the INA 101(a)(35) (8
U.S.C. 1101(a)(35)) which defines the term “spouse.” A marriage,
in order to be valid for immigration purposes, must be celebrated in the presence
of both parties.
c. The underlying principle in determining the validity of the marriage is
that the law of the place of marriage celebration controls (except as noted
in paragraph d of this section). If the law is complied with and the marriage
is recognized, then the marriage is deemed to be valid for immigration purposes.
Any prior marriage, of either party, must be legally terminated.
d. Marriages, considered to be void under State law as contrary to public
policy, such as polygamous or incestuous marriages, or which Federal law such
as the Defense of Marriage Act determines does not meet the Federal definition
of a marriage, cannot be recognized for immigration purposes even if the marriage
is legal in the place of marriage celebration.
NAFSA will update this page with any clarifications issued by DHS or DOS.