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Immigrations rights coming soon for same-sex couples?

Currently, the Defense of Marriage Act defines marriage as between a man and a woman only, for purposes of federal law. Everyone knows that several states now recognize same-sex marriage on a state level, but as long as DOMA is in place, these marriages will not be recognized on a federal level.

This means same-sex couples who are legally married in a state that recognizes it do not have any of the legal benefits of marriage afforded by federal law, including tax benefits and insurance benefits.

Another important benefit that DOMA blocks from same-sex couples centers around immigration. DOMA prevents U.S. citizens and permanent residents from petitioning for green cards for their same-sex spouses. Some argue that this was the very purpose of DOMA, as it was passed in 1996 when Hawaii was about to legalize same-sex marriage.

As we have reported in the past, DOMA has prevented hundreds of same-sex bi-national couples from being together. However, good news for these families came last week when the U.S. Court of Appeals for the Second Circuit ruled that DOMA is unconstitutional.

The First Circuit Court of Appeals also previously held DOMA to be unconstitutional, but it will be up to the United States Supreme Court -- the nation's highest court -- to decide once and for all. Following the decision by the Second Circuit Court of Appeals, it is very likely that the Supreme Court will take up the case, and maybe even issue a decision this summer.

If the Supreme Court agrees with the federal Circuit Courts that DOMA is discriminatory against same-sex couples, a U.S. citizen or permanent resident who is married in any state that recognizes it will be able to apply for a green card for a foreign spouse.

Some immigration law experts are so convinced that the Supreme Court will find DOMA unconstitutional that they are developing guides for same-sex couples to use in immigration petitioning. We will follow this issue closely over the next year.

Source: NY Daily News, "U.S. citizens may soon be legally able to petition for same-sex partners," Allan Wernick, Oct. 24, 2012

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