With the election of Donald Trump as President of the United States, and the election of Mike Pence, a virulent opponent of LGBTQ rights, as Vice President of the United States, individuals in the LGBTQ immigrant community have voiced concerns about their continuing eligibility for immigration benefits based on same-sex marriage.
However, individuals seeking immigration benefits based on a same-sex marriage are unlikely to see any change in their eligibility for immigration benefits under a Trump-Pence administration. This is because the Immigration and Nationality Act (INA) provides for certain immigration benefits based on marriage and the U.S. Supreme Court has recognized and confirmed the validity of same-sex marriage throughout the United States.
Under the INA, spouses of U.S. citizens or lawful permanent residents may be eligible to receive lawful permanent residency (green card), temporary nonimmigrant visas and/or employment authorization or asylum protection.
Importantly, after the U.S. Supreme Court’s seminal decisions in United States v. Windsor, (which held that certain restrictive provisions in the Defense of Marriage Act (DOMA) violated the Fifth Amendment’s due process clause), and in Obergefell v. Hodges (which held that marriage is a fundamental right protected by the Fourteenth Amendment to the U.S. Constitution), the federal government must recognize same-sex marriage for all federal and state benefits. Therefore, under the INA, spouses are eligible for benefits regardless of whether their marriage is a heterosexual or same-sex marriage.
In order for the federal government to change the laws regarding same-sex marriage, Congress would have to pass a law changing the definition of marriage or the U.S. Supreme Court would have to consider the issue again and reverse or change its holding in Obergefell. Although neither of these are impossible scenarios, they are unlikely in the near future.
Thus, in terms of eligibility for immigration-related benefits, unless we see quick and draconian action by Congress to limit the definition of marriage in the United States or a complete reversal by the U.S. Supreme Court on the issue, individuals seeking an immigration benefit based on a same-sex marriage are unlikely to see any significant changes in their eligibility under a Trump administration.
For more information on immigration benefits through marriage, including same-sex marriage, please contact Kolko & Associates, P.C.
