Nearly 36,000 United States citizens are currently living with their foreign-born same-sex partners. Until recently, same-gendered binational spouses have been unable to avail themselves of the immigration advantages shared by their heterosexual counterparts, largely because of Section 3 of the Defense of Marriage Act (DOMA), which defines “marriage” at the federal level as “a legal union between one man and one woman.” This dual treatment changed, however, in the summer of 2013, when the Supreme Court heard the case of United States v. Windsor, which challenged Section 3 of DOMA. In Windsor, the Court held that by restricting the terms “marriage” and “spouse” to heterosexual unions only, Section 3 of DOMA violated the Due Process Clause of the Constitution. Following the Court’s ruling, Secretary of Homeland Security Janet Napolitano released a statement that United States Citizenship and Immigration Services (USCIS) would review family-based immigrant petitions filed on behalf of same-sex spouses similar to how it reviews those same petitions filed on behalf of heterosexual spouses.
While many applauded Secretary Napolitano’s announcement, many married, same-gendered couples still fail to have complete redress. This article will explain why, despite this recent announcement, there is still reason for married same-gendered couples to navigate the immigration process with trepidation. Section I of this article examines how the historical treatment of lesbian, gay, bisexual, and transgender (LGBT) immigrants to the United States helped shape the policy of failing to recognize same-sex marriages pre-DOMA and helped lead to the passage of DOMA. Section II explores the immigration benefits of marriage and DOMA’s impact on such benefits. Section III looks at the USCIS’s traditional approach to recognizing marriage validity, while Section IV examines why this approach can be worrisome for married same-gendered couples seeking immigration benefits even in a post-DOMA world.