The United States policy regarding same-sex immigration denied couples in same-sex relationships the same rights and privileges afforded different-sex couples based on several court decisions and the Defense of Marriage Act (DOMA) until the U.S. Supreme Court ruled Section 3 of DOMA unconstitutional in United States v. Windsor on June 26, 2013.
A non-citizen in such a marriage could not use it as the basis for obtaining a waiver or relief from removal from the U.S.[7] The United States Citizenship and Immigration Services (USCIS) reaffirmed its policy of denying green card applications in such cases in March 2011.
[14][15] Since the legislation was first introduced, it has been expanded to provide rights to the children or stepchildren of the foreign-born partner, and has been included as Title II of the Reuniting Families Act (H.R.
[16] Advocates for the legislation have identified 22 countries that recognize same-sex couples under their immigration law, including France, Germany, Israel, and the United Kingdom.
[23] In 2005, the precedential ruling in In re Lovo-Lara,[24] BIA established a precedent that invalidated the 2004 policy of rejecting all marriage applications in which one of the partners was transgender.
[27][28][29] On December 11, 2012, more than 50 LGBT advocacy groups and immigration rights groups asked President Obama to put a hold on immigration cases involving Americans seeking legal residency visas for foreign-born spouses of the same sex, pending Supreme Court action in United States v. Windsor, a case which challenges the constitutionality of DOMA section 3.
[30] According to Immigration Equality, an advocacy organization, in 2009 there were roughly 36,000 bi-national same-sex couples unable to secure green cards for one partner.
[34] The Supreme Court's decision in United States v. Windsor on June 26, 2013, ruling Section 3 of DOMA unconstitutional was recognized as ending the disparate treatment of same-sex and different-sex couples in matters of immigration.
[36] Department of Homeland Security Secretary Janet Napolitano said: "[W]e will implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws".
[39] Former U.S. Attorney General Alberto R. Gonzales and David N. Strange, an immigration lawyer, called Napolitano's action "not consistent with the law".
They advised that "Congress ... should also take up the issue of immigration benefits for same-sex couples, to provide clarity given the legal uncertainty around this matter.