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Federal Government Issues New Immigration Guidelines for Same Sex Couples

Following the decision by the U.S. Supreme Court to abolish portions of the Defense of Marriage Act in June, the Department of Homeland Security announced it would issue green cards for same sex spouses. On July 26, 2013, DHS officials issued new guidelines to review all applications by same sex couples submitted after February 23, 2011. Married or engaged gay couples may also petition for a review of their case even if their application was filed prior to that date.

As a longtime immigration attorney in Texas, I have observed changing cultural values in my community and across the country. Just a few years ago it would have appeared unlikely that same sex couples would receive the same consideration from immigration authorities as heterosexual couples, but with the ruling by the Supreme Court, this is now a federal policy.

Prior to the Supreme Court ruling, the federal government was shackled by the Defense of Marriage Act and refused to officially recognize marriages between partners of the same gender. Initially passed in 1996, DOMA defined marriage as the union of a man and a woman. This law limited benefits for the gay or lesbian partners of federal employees. DOMA was also the primary justification for not issuing visas to same sex spouses.

In a five to four decision, the U.S. Supreme Court struck down key elements of DOMA. Initially brought as a lawsuit by Edith Windsor, the case led to a majority decision written by Chief Justice John Roberts. This opinion labeled DOMA as discriminatory against gays and lesbians by not recognizing their marriages. Although the decision was not a definitive recognition of gay marriage, it does allow the federal government to formally recognize same sex marriages in administrative and legal proceedings.

According to Immigration Equality, almost 36,000 same sex couples with one partner a foreign national could obtain a visa according to new DHS policies. The Department of Homeland Security reportedly has maintained records of all couples who were denied entry despite a legal marriage since February 23, 2013. Even gay or lesbian couples who were denied a visa prior to February 23, 2013 may ask the DHS to review their decision if they notify the department by March 31, 2014.

Since the Supreme Court ruling was handed down almost 2,300 bi-national couples have submitted inquiries to the DHS. About 11 percent of these couples had spouses in Mexico, five percent had a spouse in Canada, five percent had a spouse in Brazil, and three percent had a spouse from the United Kingdom.

As an immigration lawyer in Austin, I understand that many bi-national, same sex couples are eager to obtain a visa, but there remains some administrative implementation before the door can be fully opened. The U.S. State Department must adopt new procedures to allow same sex couples entry, so it may take a few months before the first visas are issued. Until then, couples should contact the Department of Homeland Security with the assistance of knowledgeable legal counsel.

Lyttle Law Firm, PLLC has been representing clients in visa and other immigration matters for years. To discuss your immigration or family law issue with an experienced legal professional, please call our office at (512) 215-5225.

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