The Scholar: St. Mary's Law Review on Race and Social Justice


Following the Supreme Court’s rulings in United States v. Windsor and Hollingsworth v. Perry, it is expected that current federal laws concerning immigration, as it pertains to binational same-sex married couples, will be affected. In Windsor, the Court struck down Section Three of the Defense of Marriage Act (DOMA). The Court held the federal government could not treat same-sex couples differently from heterosexual couples. In Perry, however, the Court dismissed the case due to a lack of standing. As a consequence, Section Two of DOMA, which permits states to not recognize same-sex marriages performed in another state, remains valid. In enforcing the changed laws post-Windsor and Perry, the U.S. Citizenship and Immigration Services (USCIS) and the Board of Immigration Appeals (BIA) have held that same-sex marriages are valid for immigration purposes, so long as it is a bona fide marriage. To be a bona fide marriage, the marriage must have been celebrated in a country or U.S. state where same-sex marriages are legal. Sham marriages, fraudulent marriages entered into for the sole purpose of attaining the individual's status as a permanent resident, are not bona fide marriages. Also, civil unions and domestic partnerships are not treated as lawful marriages. Despite these exceptions, a bona fide marriage is still valid even if the state where the couple is domiciled does not recognize same-sex marriages. There are approximately 36,000 same-sex binational couples currently residing in the United States. If the same-sex marriages are determined to be valid, they will receive the same benefits as heterosexual couples. Since federal marriage equality legislation could potentially allow more same-sex couples to seek and attain immigration benefits above and beyond those permitted by Windsor, same-sex couples should continue pushing for comprehensive immigration reform.

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