Recently the Supreme Court issued its decision in the case of United States v. Windsor, in which it struck down the part of the Defense of Marriage Act (DOMA) that defined marriage as being between a man and a woman. This meant that federal agencies would not recognize same-sex marriages for any immigration purpose. Since the Court’s decision, the immigration service has moved rapidly to allow U.S. citizens to obtain green cards for their spouses, providing hope to an estimated 28,500 bi-national same-sex couples in the United States who might otherwise be separated by our immigration laws.
The fall of DOMA’s definition of marriage has other benefits for same-sex spouses beyond green cards. It will also give same-sex spouses access to many other immigration benefits, like derivative visas for spouses of holders of nonimmigrant visas like H-1B or L visas, hardship waivers for people who have been deported or barred from reentry, eligibility for cancellation of removal, 212(h) hardship waivers of minor offenses, reopening of removal orders, and other considerations reserved for the spouses of U.S. citizens. These benefits may allow thousands of bi-national same-sex couples to return to the U.S. after having spent years in exile abroad or after being separated from their life partners and families.
However, the Court’s decision does not solve all immigration problems for same-sex couples. Same-sex marriage is currently legal in only 13 states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) and the District of Columbia. Although USCIS respects the legality of a marriage based on the place of celebration, if a couple cannot travel to a state or country where they can legally marry, they may be out of luck. Foreign nationals who are in immigration detention in states that do not allow same-sex marriage, who are trapped in countries that persecute homosexuals, or who cannot move to a jurisdiction that allows same sex marriage for any reason, may not be able to marry their U.S. citizen partners and obtain immigration benefits.
The Board of Immigration Appeals (BIA) in Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA July 17, 2013) held that in light of the U.S. Supreme Court’s decision in U.S. v. Windsor, 133 S. Ct. 2675 (2013), § 3 of the Defense of Marriage Act (DOMA), Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), [FN1] is no longer an impediment to the recognition of lawful same-sex marriages and the recognition of spouses under the INA if the marriage is valid under the laws of the state where it was celebrated.
The U.S. citizen petitioner, Oleg B. Zeleniak, filed an I-130, Petition for Alien Relative, on behalf of the beneficiary, Serge V. Polajenko, as his (male) spouse on March 10, 2010. U.S. Citizenship and Immigration Services’ National Benefits Center (NBC) Director denied the petition on July 27, 2010, and the petitioner appealed the denial to the Board. In an April 18, 2012 decision, the Board remanded the record to the Director with instructions to address two issues: whether the petitioner’s marriage is valid under the applicable state (Vermont) law and whether the marriage would qualifies under the INA absent the requirement of DOMA § 3. On remand, in a decision dated June 19, 2012, the Director determined that the marriage was valid under Vermont law but declined to consider the issue whether the beneficiary would be a spouse under the INA absent the requirements of DOMA § 3 (the controlling federal statute). Hence the Director once more denied the visa petition. The petitioner once again appealed to the Board.
The Board sustained the petitioner’s appeal and again remanded the record to the Director for further consideration of the visa petition in light of the BIA’s opinion in this matter. Board Chairman David L. Neal, writing for the panel which included Vice Chairman Charles K. Adkins-Blanch and Board Member Ana Landazabal Mann, explained that an alien spouse of a U.S. citizen may acquire lawful permanent resident status in the U.S. [FN2] and that, in order to determine whether a marriage is valid for immigration purposes, the U.S. citizen petitioner must establish that a legally valid marriage exists and that the beneficiary qualifies as a spouse under the INA, which includes the requirement that the marriage must be bona fide. [FN3]
The Board further found that the intervening Supreme Court’s decision in Windsor that DOMA § 3 is unconstitutional as a violation of the constitutional guarantees of equal protection and due process. [FN4] The Court explained that DOMA’s deviation from the usual tradition of recognizing and accepting state definitions of marriage operated to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. [FN5] As a result, the Board said, the Windsor decision removed DOMA § 3 as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the state where it was celebrated and the Court’s decision is applicable to various provisions of the INA, including, but not limited to, INA § 101(a)(15)(K) [8 USCA § 1101(a)(15)(K)] (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), §§ 207 and 208 [8 USCA §§ 1157 and 1158] (refugee and asylee derivative status), § 212 [8 USCA § 1182] (inadmissibility and waivers of inadmissibility), § 237 [8 USCA § 1227] (removability and waivers of removability), § 240A [8 USCA § 1229b] (cancellation of removal), and § 245 [8 USCA § 1255]. The Board further observed that the issue of the validity of a marriage under state law is generally governed by the law of the place of celebration of the marriage. [FN6]
Since the Director, on the first remand, found that the petitioner’s and beneficiary’s marriage was valid under the law of Vermont where it was celebrated, the sole remaining issue is whether the petitioner has established that his marriage to the beneficiary is bona fide. The Board therefore remanded to the Director to address that issue.
[FN1]. DOMA § 3 defined marriage to mean “only a legal union between one man and one woman as husband and wife,” and “spouse” to refers only to “a person of the opposite sex who is a husband or a wife.”
[FN2]. INA § 201(b)(2)(A)(i) [8 USCA § 1151(b)(2)(A)(i)].
[FN3]. 8 CFR § 204.2(a) (2013).
[FN4]. See Windsor, 133 S. Ct. at 2695-96.
[FN5]. Windsor, 133 S. Ct. at 2693.
[FN6]. See Matter of Lovo-Lara, 23 I.& N. Dec. 746, 748 (BIA 2005).
USCIS Implementation of the Supreme Court Ruling on the Defense of Marriage Act
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Cite as 26 I&N Dec. 158 (BIA 2013) Interim Decision #3787
Matter of Zeleniak and Polajenko, 26 I&N Dec. 158 (BIA 2013)
Matter of Oleg B. ZELENIAK, Beneficiary of a visa petition filed by Serge V. Polajenko, Petitioner
Decided July 17, 2013
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Section 3 of the Defense of Marriage Act, Pub. L. No. 104 199, 110 Stat. 2419, 2419(1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated.
FOR RESPONDENT: Bridget Cambria, Esquire, Philadelphia, Pennsylvania
FOR THE DEPARTMENT OF HOMELAND SECURITY: Julie Hollowell, Associate Counsel
BEFORE: Board Panel: NEAL, Chairman; ADKINS-BLANCH, Vice Chairman; MANN, Board Member.
NEAL, Chairman:
The United States citizen petitioner filed a Petition for Alien Relative (Form I-130) on behalf of the beneficiary as his spouse on March 10, 2010.The National Benefits Center Director denied the petition on July 27, 2010, and the petitioner appealed the denial to the Board. In an April 18, 2012, decision, we remanded the record to the Director with instructions to address two issues: whether the petitioner’s marriage is valid under State law and whether the marriage qualifies under the Immigration and Nationality Act. In a decision dated June 19, 2012, the Director considered the visa petition in light of our prior decision and once more denied the visa petition. The petitioner has now appealed the Director’s second denial. The petitioner’s appeal will be sustained, and the record will be remanded.
An alien spouse of a United States citizen may acquire lawful permanent resident status in the United States. See section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2012).In order to determine whether a marriage is valid for immigration purposes, the United States citizen petitioner must establish that a legally valid marriage exists and that the beneficiary qualifies as a spouse under the Act, which includes the requirement that the marriage must be bonafide. 8 C.F.R. § 204.2(a) (2013).
In this case, both the petitioner and the beneficiary are male. In our prior decision, we asked the Director to address, in the first instance, whether the petitioner and the beneficiary have a valid marriage under thelaws of Vermont. See Matter of Lovo, 23 I&N Dec. 746, 748 (BIA 2005). We further asked the Director to address, again in the first instance,whether the marriage of the petitioner and the beneficiary would qualify the beneficiary to be considered a spouse under the Act absent the requirements of section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat.2419, 2419 (1996) (“DOMA”). That section set forth the meaning of the word “marriage” in 1 U.S.C. § 7 (Supp. II 1996) as follows:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
On remand, the Director determined that the petitioner and beneficiary have a valid marriage under the laws of Vermont. However, the Director declined to consider the issue whether the beneficiary would be a spouse under the Act absent the requirements of section 3 of the DOMA, which was the controlling Federal statute.
On June 26, 2013, while this appeal was pending, the United States Supreme Court ruled that section 3 of the DOMA is unconstitutional as a violation of the constitutional guarantees of equal protection and due process. See United States v. Windsor, 133 S. Ct. 2675, 2695-96 (2013). As the Court explained:
The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. Id. at 2693.
The Supreme Court’s ruling in Windsor has therefore removed section 3 of the DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated. This ruling is applicable to various provisions of the Act, including, but not limited to, sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status), 8 U.S.C. §§ 1101(a)(15)(K), 1153, 1154, 1157, 1158, 1182, 1227, 1229b, and 1255 (2012).
We will therefore sustain the petitioner’s appeal. The issue of the validity of a marriage under State law is generally governed by the law of the place of celebration of the marriage. See Matter of Lovo, 23 I&N Dec. at 748. The Director has already determined that the petitioner’s February 24, 2010, marriage is valid under the laws of Vermont, where the marriage was celebrated. See Vt. Stat. Ann. tit. 15, § 8 (West 2013) (effective Sept. 1, 2009). Thus, the sole remaining inquiry is whether the petitioner has established that his marriage to the beneficiary is bona fide.See Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of McKee, 17 I&N Dec. 332 (BIA 1980); Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). We will remand the record to allow the Director to make that determination.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Director for further consideration of the visa petition consistent with the foregoing opinion and for the entry of a new decision.
