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Gay marriage opens door to immigration policy changes

Several groups focusing on gay rights at the University of Georgia hosted a lecture on Tuesday, Oct. 15, discussing changes in immigration law resulting from the recent Supreme Court's ruling of the Defense of Marriage Act (DOMA). The featured speakers were Jason Cade, a professor of immigration law, and immigration attorney Alex Halow of Athens, Georgia.

The decisive case of U.S. v. Windsor ushered in a chain of legislative shifts, according to Cade and Halow. The Court ruled that Section 3 of DOMA, which excluded same-sex couples from consideration for the same federal benefits afforded straight married couples, was unconstitutional. With that ruling, the door opened for immigration benefits to be recognized for same-sex couples in which one partner is a foreign national.

In his remarks, Prof. Cade stated, "This interpretation of Windsor was not compelled," attributing the sweeping policy shift, impacting a range of government agencies, to a liberal reading of the Supreme Court's decision by the Obama administration.

"Until 1990, homosexuality was categorized as a health-based grounds of exclusion in the United States. So if you were known to be homosexual, even if you met all other criteria, you could not be admitted lawfully into the United States."

In his talk, Halow delineated the basic legal routes to immigration benefits, including the K-1 visa, or fianc?e visa, adjustment of status and Form I-130, Petition for Alien Relative.

Halow raised a concern about potential bureaucratic hurdles same-sex couples could face in providing conditional types of proof in order to avail themselves of the immigration benefits.

"The question is: Is it going to be more difficult for a same-sex couple to convince them that their relationship really is bonafide?" Halow said.

Cade and Halow stated the U.S. v. Windsor decision is significant federal recognition of same-sex marriages in granting immigration benefits that can potentially lead to additional marriage rights for homosexuals, and perhaps even to a repeal of Section 2 of the DOMA, which permits states to decide whether same-sex marriages are valid.

Navigating the uncertain waters of spousal immigration is difficult enough for heterosexual couples. Same-sex marriage, being so new in this country, can be even more complicated. Couples who want to live in the U.S. may find it beneficial to consult with an experienced family immigration attorney to get the best advice for their situation.

Source:, "DOMA repeal offers new immigration options for same-sex couples" Daniel Funke, Oct. 28, 2013

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