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First Circuit Holds DOMA Unconstitutional

The First Circuit, in a recent landmark decision, Massachusetts v. United States Department of Health and Human Services, held that Section 3 of the Defense of Marriage Act (“DOMA”) violates the Equal Protection Clause of the Constitution. In the immigration context, DOMA is a barrier to immigration equality for same-sex couples and their families. Specifically, because of DOMA, U.S. citizens have no legal ability to file a green card petition for a same-sex spouse. This is one of the most common immigration benefits sought by U.S. citizens. Same-sex couples are also excluded from all other immigration benefits that flow from a legal marriage.

Given the significance of DOMA with respect to immigration benefits, many of our clients are asking what the First Circuit’s decision means. Unfortunately, the Court’s decision does not have any immediate positive impact for same-sex couples seeking immigration benefits. But the decision is a step in the right direction of immigration equality and security for same-sex couples.

What is DOMA?  

DOMA, enacted in 1996, consists of two operative provisions: (1) Section 2 absolves states from recognizing same-sex marriages solemnized in other states; and (2) Section 3 defines “marriage” as “only a legal union between one man and one woman as husband and wife.”  The result of Section 3 is to deprive same-sex couples of certain benefits enjoyed by heterosexual couples.  For example, it prevents same-sex couples from filing joint federal tax returns or the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits.   

In Massachusetts v. United States Department of Health and Human Services, the First Circuit held that Section 3 of DOMA violates the Constitution’s Equal Protection Clause. The Court noted that DOMA affects a thousand or more generic cross-references to marriage in federal laws and in most cases, operates to the disadvantage of same-sex married couples. This is acutely felt in the immigration context, where DOMA precludes immigration benefits from flowing to same-sex couples. For example, a U.S. citizen may be married to a same-sex partner who holds an H-1B work visa in Massachusetts or another state where same-sex couples enjoy civil marriage rights. The couple can be together for many years. But the spouse holding an H-1B visa has to secure a green card --- if this is possible at all --- through a burdensome process that is sponsored by an employer and that takes many years. Because of DOMA, there is no sponsorship option for this couple under the “immediate relative” category, which would compress the green card process to about six months. Pundits talk about the “line” that immigrants need to join to embark on a “path to citizenship.” Under the current system, same-sex couples are excluded from any line. Thousands of couples are in limbo. Symbolically, this makes the First Circuit’s decision extremely meaningful.   

What should we expect?

In anticipation of further review of its decision and DOMA by the Supreme Court, the First Circuit stayed the application of its decision. Thus, Section 3 of DOMA remains in effect. This means that there is no change at this time to the status quo with respect to federal benefits that are granted to married couples. But the Court’s decision is more than symbolic. The decision is significant in that it may be one step in an extended process to invalidate DOMA. But the Court’s decision does not immediately impact the status of foreign nationals on nonimmigrant visas who are partnered with or married to U.S. citizens. Impacted foreign nationals married to U.S. citizens should not apply for marriage-based green card benefits.    

Same-sex couples should plan as if DOMA will be the law for the next several years to come when considering their U.S. immigration law options. We may see changes sooner, but DOMA is still an obstacle to same-sex couples needing the security of marriage-based immigration benefits.

 

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Author

Douglas Hauer is a Mintz attorney and noted authority on the EB-5 investor visa program, which gives developers a path for securing capital for real estate, hospitality, and infrastructure projects. He's an essential resource for companies looking for financing from offshore sources.