We are proud to introduce Prof. Janet Calvo’s discussion of the Windsor decision’s impact on immigration law as part of our ongoing series of web-exclusive pieces by professors, students, practitioners, and others who aim to share timely legal commentary in Footnote Forum, the online companion of the Law Review. For more on this opinion, see Prof. Ruthann Robson’s related piece.
Janet M. Calvo*
The Defense of Marriage Act (DOMA), barred federal immigration authorities as well as other federal officials from recognizing same-sex marriages. Now that DOMA has been declared unconstitutional in U.S. v. Windsor, the federal officials that implement immigration law have declared that same-sex marriages will be recognized to the same extent as opposite-sex marriages. This has implications for several aspects of immigration law and practice. On July 1, 2013 the Secretary of Homeland Security directed the 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,” and the USCIS posted additional information about implementation. On August 2, the Secretary of State similarly stated “when same-sex spouses apply for a visa, the Department of State will consider that application in the same manner that it will consider the application of opposite-sex spouses,” and the Department of State website provided further detail, in line with the USCIS position.
Further, on July 17, 2013, the Board of Immigration Appeals (BIA) issued a decision stating that DOMA was no longer an impediment to recognition of same-sex marriages; therefore, a same-sex spouse would be recognized under immigration law if the marriage were valid in the state in which it was celebrated, and was bona fide. This case involved the non-citizen same-sex spouse of a U. S. citizen who had filed a petition on behalf of that spouse. The Director’s determination had found that the marriage was valid under the laws of Vermont where the marriage was celebrated, but did not grant the petition. The BIA held that, after Windsor, the sole remaining issue was whether the marriage was bona fide—i.e., whether the marriage was entered into solely for the purposes of immigration—and remanded the case to allow the Director to make that determination.