In February, President Obama and Attorney General Eric Holder announced that they would not continue to enforce the Defense of Marriage Act (DOMA) because they believe it to be unconstitutional. DOMA, passed in 1996, defines marriage for all federal purposes as the legal union between one man and one woman. Obama and Holder determined that the law, since it treated people differently based upon sexual orientation, must be able to withstand a heightened standard of constitutional scrutiny, not the relatively lower "rational basis" test that has been used in the past. The Administration found that the law could not withstand constitutional scrutiny under this higher standard and therefore violates the Constitution's guarantee of equal protection under law. Regrettably, at least for now, the Administration's announcement does not translate into any new immigration benefits for same-sex couples.
For a brief period in March, same-sex couples thought immigration options were opening up to them, only to have their hopes dashed. Following the Obama/Holder announcement, USCIS and DOJ were reportedly holding in abeyance all enforcement and benefits processing for individuals who may have a claim to immigration benefits if DOMA were no longer law. After only one week of this presumed policy shift, USCIS released a statement that it would not hold same-sex marriage cases, and that agency would continue to process these petitions in accordance with DOMA.
In response to this latest development, a group of some 80 organizations urged DHS, in an April 6th letter, to adopt interim measures to prevent immediate and irreparable harm to American families caused by its continued adherence to DOMA. Then, on April 14th, Representatives Nadler, Lofgren, and other members of Congress formally re-introduced the Uniting American Families Act (UAFA), a bill that would give immigration benefits to the same-sex spouses of U.S. citizens.
However, for now, the reality for same-sex, bi-national couples has not changed. USCIS will deny green-card petitions filed by U.S. citizens for their same-sex spouses, and it will take years for their appeals to reach federal courts. Keep an eye on this dynamic and important area of law as the fight over the future of DOMA continues.