Author: Melissa A. Silver, XpertHR Legal Editor

July 15, 2013

The United States Citizenship and Immigration Services (USCIS) has given notice that it is now implementing the Supreme Court's decision in United States v. Windsor, 2013 U.S. LEXIS 4921 (2013). This decision held that section 3 of the Defense of Marriage Act (DOMA), denying federal benefits (including immigration benefits) to same-sex couples, is unconstitutional.

Following the Court's decision, the Secretary of Homeland Security, Janet Napolitano issued a statement directing the 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."

To that end, the Department of Homeland Security (DHS) and USCIS have updated their websites with FAQs that provide guidance to individuals who are filing an immigration petition on behalf of a same-sex spouse. For instance, it is now clear that a US citizen or lawful permanent resident in a same-sex marriage can sponsor his or her spouse for a family-based immigrant visa. Further, it addresses the situation where a couple gets married in a state that recognizes same-sex marriages, but subsequently moves to a state that does not. The FAQs confirm that in such a situation the immigrant visa petition can still be filed by one of the spouses on behalf of the other. This is because, with limited exceptions, the USCIS looks to the law of the state where the individual was married when evaluating the petition.

On its website, the USCIS also directs individuals who are in a same-sex marriage to the appropriate form a spouse must file when filing a visa petition. The USCIS clearly states that it will not automatically deny the petition as a result of the "same-sex nature of the marriage."

Employers should continue to monitor the impact of the Supreme Court's ruling on immigration benefits.