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Supreme Court’s decision on DOMA can benefit aliens with extraordinary ability in same sex marriages

Thursday, July 18th 2013


Recently, the Supreme Court ruled in U.S. v. Windsor that the Defense of Marriage Act, or DOMA, which barred federal benefits for spouses in same sex marriages, is unconstitutional. One major benefit of this decision for gay couples is that a U.S. citizen or green card holder can now petition for his or her same sex spouse to receive a green card. The Woog Law Office is already handling several of these cases.

However, there are other important immigration benefits for same sex couples that have been given less attention. For example, if a professional employee is coming to work in the U.S. on an L-1 or H-1b visa, his same sex spouse may now be able to receive a dependent, or derivative, visa classification to enter the U.S. as well. Similarly, a worker who is applying for a green card based on his employment may now be able to include his same sex foreign national spouse. Such benefits may allow many couples to live in the U.S. instead of being separated or living abroad for many years.

These changes will be highly significant for many foreign born individuals, including those who possess “extraordinary ability” in a particular field. Let’s look at a couple of scenarios involving aliens with special skills and talents to understand the effects of the Supreme Court’s recent decision.

Scenario 1. Anna is a geneticist of some international renown, based in the Netherlands. She and her partner, Sarah, were legally married in Amsterdam. Anna is offered a job doing research at a lab in California. Anna receives an “O-1” visa based on her extraordinary ability as a scientist. Anna can then enter the U.S. to work on a temporary basis. Previously, her wife Sarah would not have been allowed to join her in the U.S. because the marriage was not recognized by the immigration laws. Now, Sarah can enter the U.S. in O-3 status, as Sarah’s “dependent” because they are legally married. With an O-3 visa, Sarah will be allowed to remain in the U.S. as long as Anna has the O-1, but will not be allowed to work.
Scenario 2. Ravi, a mathematician from India, has been in the United States for several years on an H-1b visa working at a hedge fund in New York. He developed a new method for analyzing stock market risk which received a lot of favorable publicity. Ravi is requesting a green card based on his extraordinary ability, known as an EB-1 petition. While in the U.S. he met Jon, who is from the Philippines. They lived together for two years and recently got married in New York. Jon is on an F-1 student visa studying finance. Before DOMA, Jon would have to change to a temporary visa classification or leave the U.S. at the conclusion of his studies. Now, however, Ravi can list Jon as his spouse on the EB-1 visa petition. If it is approved, then he and Jon may both be able to receive green cards at the same time. Then they will both be able to live together permanently in the U.S.
A cautionary note: These scenarios are likely results after the Supreme Court’s decision on DOMA. While as of yet the United States Citizenship and Immigration Service has not issued clear guidance on how such cases will be handled, it seems entirely likely that with the end of DOMA, same sex families will be treated the same as heterosexual marriages under immigration law. It is also important to remember that every case is unique and there may be various other factors affecting eligibility in a certain immigration category.

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