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Legal Lesson: The importance of DOMA being struck down

(Editor's note: SDGLN welcomes James Rudolph as a legal columnist for SDGLN. He will write about immigration issues. See his photo below on the left and read his mini-biography at the bottom of his first column.)

First, congratulations to having a key part of the Defense of Marriage Act (DOMA) overturned. That was a very important step in gaining rights and the respect of the federal government. That U.S. Supreme Court ruling directly impacts equality in immigration rights.

The immigration process requires the U.S. citizen or Legal Permanent Resident to petition for their illegal spouse, usually by issuing an affidavit of support. Before, the only people who were eligible to apply for this right were spouses recognized by marriage. That has all changed now that the federal government recognizes same-gender marriages.

With the new law change, the government recognizes same-gender marriages, and in return, the U.S. Customs and Immigration Services (USCIS) will accept petitions from same-gender applicants as long as they are lawfully married. Now, couples where one person was previously removed from the United States have reason to hope that they can reunite with their partner.

Now, after the federal government’s decision to overturn DOMA, many same-gender couples have a more direct path to citizenship. To clarify, before, there was a roadblock legally petitioning for one’s spouse. Same-gender marriages were not recognized at the federal level and federal immigration officers could not process same-gender applicants. Now the laws have changes, anyone who is legally married will have the same rights.

Secretary of State John Kerry explains this best:

“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.”

Same-gender couples will have the same legal requirements as anyone else applying. Even if the state where the couple resides does not recognize their marriage, the government will recognize it if the couple’s marriage took place in a legal state.

As for now, the legal wording is unclear as how the government will respond to domestic partnerships or civil unions. The best advice is to get married to strengthen a couples’ immigration case.

Same-gender couples should be positive about the future. After much hard work, they are going to receive the same rights as opposite-gender couples. This legislation will help tens of thousands of couples living in the United States stay together, without having to live in fear because they do not have proper documentation.

James Rudolph, J.D., Washington University, B.A., Accounting and Finance, is a legal columnist for SDGLN. He is a San Diego lawyer, works with clients nationally, and fights for his clients rights concerning immigration. Contact him at 619-235-0010 or JBR@rudolphbaker.com for information on services.