Until recently, an individual’s ability to seek citizenship in the United States through a citizen partner has been clear: unless a marriage is deemed valid, the federal government will not grant legal resident status. Traditionally, the federal government has looked to the states to determine the validity of a marriage. Amidst the resulting scarcity of federal laws concerning the marital relationship, the Defense of Marriage Act (DOMA) sought to provide a federal definition to the exclusion of same-sex couples. In 2013, the United States Supreme Court struck down DOMA, giving rise to new questions of the immigration process for binational same-sex couples in an era where the power to define marriage has returned to the states’ hands.
Determination of the validity of an immigrant’s marriage is not a new process nor is it unique to same-sex relationships. Since its inception as an agency, United States Citizenship and Immigration Services (USCIS) has reviewed visa applications for permanent residency based on all sorts of controversial marriages: brother/sister, bigamy, polygamy, and biracial marriages, to name just a few. Only until recently has same-sex marriage become so accepted that movements to admit these couples’ visa applications have gained favor.
For immigration purposes, the federal government will accept a spouse for visa sponsorship if the spouse’s marriage is valid where it was celebrated. A binational same-sex couple residing in Pennsylvania who married in Texas must only fulfill the requirements of a legitimate marriage in Texas. The USCIS has consistently used the following three-part test in assessing the validity of a marriage between a U.S. citizen and that citizen’s spouse:
A couple’s marriage that is not recognized in the state where it was celebrated will not be given credit by the federal government. This affirms the long-standing position of giving states the power to define the marital relationship. For example, a marriage between polygamists would not be recognized by any state, and the federal government has never circumvented that prohibition. On the other hand, interracial marriages which were once held invalid in the vast majority of states have long been accepted and present no obstacles to visa sponsorship.
The state must not have any serious public policy objections to the marriage. States have the power to craft their own stances on marriage irrespective of how other states view the relationship. This is why a marriage between first cousins is legal in some states and outright criminalized in others, with a whole range of varying degrees of prohibition in between. Instead of intruding on a traditional state realm of power, the federal government simply declines to recognize the marriage if the state bans or criminalizes it.
Even if the marriage is valid where celebrated and not subject to any public policy objections, it must be supported by a genuine marital relationship. Because marriage is one of the simplest avenues to obtaining lawful residency, there is a strong incentive to enter into “sham marriages” for the sole purpose of obtaining favorable immigration treatment. The federal government will examine the relationship with enough scrutiny to determine whether it is bona fide. Accordingly, it is important for any married couple applying for visa sponsorship to document the wedding celebration, cohabitation, and any other relevant events tending to evidence a genuine marriage.
The INA test fulfills the core democratic belief that certain legislative areas should be left up to the states. Irrespective of any federal stance on the issue, states were given broad leeway to dictate the validity of a certain type of marriage. This balance between state and federal power on immigration issues endured until Congress stepped in to draw its own matrimonial line in the sand.
In 1996, the federal government passed DOMA, which for all federal purposes offered two rigid definitions: marriage is between one man and one woman, and spouse only refers to a person of the opposite sex. Moreover, DOMA eliminated any requirement for states to recognize same-sex marriages as valid. This did not signal a less favorable treatment of same-sex couples at the federal level, because they were already widely discriminated against in the area of federal benefits. In fact, until 1990, the USCIS outright barred the admission of homosexuals for domestic citizenship. Rather, DOMA marked a rare instance of federal intrusion in marital law, an area it had previously left in the hands of the states.
Traditionally, obtaining lawful residency through marriage was a three-step process. First, a foreign-born individual marries a United States citizen. Second, the U.S. citizen sponsors the individual for a green card. Third, the USCIS uses the three-part INA test and, if it deems the marriage valid and bona fide, the agency will admit the foreign individual as a lawful resident. At this point, the resident can begin the process of obtaining outright citizenship.
Under DOMA, the USCIS no longer even considered the three-part INA test in evaluating marriages between gay couples. There was no need to inquire as to whether the state or country of marriage acknowledged its validity because the federal government itself no longer deemed same-sex marriage valid. Thus, for many foreign-born individuals in the United States, marriage to their citizen partner was no longer a proper channel of obtaining lawful residency. Moreover, homosexual citizens with foreign partners had to make a brutal choice: discontinue the relationship or flee the country leaving family, friends, and career behind.
Nearly two decades after its passage, the Supreme Court took a hard look at DOMA’s definition of marriage as between one man and one woman. Finding that the core purpose of DOMA was to “demean those persons who are in a lawful same-sex marriage,” the Court struck down the provision and, by extension, nullified any legislative teeth the law had. The Court, however, peculiarly left one part of DOMA standing: its mandate that no state shall be required to recognize a same-sex marriage celebrated in another jurisdiction. While this leaves DOMA’s effectiveness somewhat murky, the federal response to Windsor has demonstrated the intent to abandon any federal restrictions based on sexual orientation.
In striking down the federal definition of marriage found in DOMA, the Supreme Court removed a previously unassailable barrier to visa sponsorship between same-sex spouses. Whereas, prior to Windsor, the USCIS rejected all same-sex petitions, the agency will now use the INA’s three-part test, which looks at how the state treats the marriage. First, the marriage must be valid in the state or foreign country where it was celebrated. Second, the couple’s state of domicile must not have a strong public policy objection to same-sex marriage. Finally, the marriage must be bona fide. Accordingly, a same-sex couple married in a state like Massachusetts that supports gay marriage will receive the same USCIS treatment as a heterosexual couple.
The ambiguity now emerges in states where same-sex marriage runs afoul of a strong public policy espoused by either the couple’s state of domicile or federal immigration law. After all, the Supreme Court reached DOMA’s definition of marriage, and left untouched the section allowing states to deny full faith and credit to a marriage celebrated in another state. Accordingly, the same-sex marriage stance where the couple lives may still be relevant.
It has always been somewhat unclear how “strong” the state’s public policy against a certain type of marriage must be. State laws criminalizing bigamy and sibling marriages have been accepted by the USCIS as reason enough to deem the marriage invalid. However, the Supreme Court has looked very unfavorably in recent years upon laws criminalizing homosexual relationships and currently, no state has such laws on the books. The question remains: with respect to states which either expressly forbid same-sex marriage or wholly decline to take a stance on the issue, should the USCIS treat those positions as public policy objections? Pennsylvania falls in the former category—it enacted its own mini-DOMA constitutional amendment and has not changed that stance. New Jersey, on the other hand, while not formally recognizing same-sex marriages, will acknowledge civil unions and will not deny state benefits to same-sex couples.
Until the Supreme Court or state legislative bodies resolve these questions, it is safe to say that USCIS has taken Windsor as a license to broadly accept same-sex visa sponsorships. Shortly after the decision, USCIS announced a system-wide review of visa petitions it had previously denied, dating back to February 23, 2011. For the first time, USCIS will examine these petitions in the same way it examines visa sponsorship between heterosexual couples.
 Scott C. Titshaw, The Meaning of Marriage: Immigration Rules and Their Implications for Same-Sex Spouses in a World Without DOMA, 16 Wm. & Mary J. Women & L. 537, 550 (2010), http://scholarship.law.wm.edu/wmjowl/vol16/iss3/3.
 1 U.S.C. §7
 Titshaw, at 595.
 U.S. v. Windsor, http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf.
 U.S. v. Windsor and Immigration Benefits, NAFSA, http://www.nafsa.org/Find_Resources/Supporting_International_Students_And_Scholars/ISS_Issues/Issues/U_S__v__Windsor,_DOMA,_and_Immigration_Benefits/.