The US immigration system has become more and more difficult in recent years, even for well-educated and experienced scientists who wish to come to the US, or to remain in the US after completing their studies. However, a recent US Supreme Court decision has just made things easier for some!
The US immigration system has become more and more difficult in recent years, even for well-educated and experienced scientists who wish to come to the US, or to remain in the US after completing their studies. However, a recent US Supreme Court decision has just made things easier for some!
On June 26, 2013, the US Supreme Court decided the landmark case, United States v. Windsor. In this case, 5 of the 9 Justices held that DOMA (the Defense of Marriage Act from 1996) is unconstitutional. While this Supreme Court case was not about US immigration law, it paved the way for same-sex marriages to now be recognized for US immigration purposes. This case was about an 84 year-old widow named Edith Windsor, a resident of New York State. Her same-sex wife, Thea Spyer, died in 2009, ending their 44-year relationship. They had legally married in Canada in 2007. After Thea’s death, Edith was assessed a $363,000 tax bill from the US IRS. If the IRS had recognized the same-sex marriage and granted the widow the same tax status as heterosexual couples, Edith would have incurred no tax bill.
The population which is likely to make up the largest group that will take advantage of this new ruling will be US citizens wishing to invite a foreign national spouse to live in the US. But a closer review shows that USCIS recognition of same-sex marriage will have a much more far-reaching effect.
There are a number of nonimmigrant visa categories which allow a foreign national to bring in a spouse and children on a dependant visa. Previously, this benefit was limited to heterosexual couples who are married. Some of the more common nonimmigrant work visas which allow for a dependant visa status are E-1/E-2 Treaty Trader/Investor, H-1B Temporary Worker, L-1 Intracompany Transferee, and the O-1 Extraordinary Ability. Now, same-sex couples will be able to bring in a dependent spouse and children, the same as heterosexual couples have been allowed to do.
This will especially be beneficial for same-sex L and E spouses, as now these spouses will be able to apply for an EAD (Employment Authorization Document) based on their dependant status. This is a free-market EAD that is not tied to any specific employer. Also, these same-sex dependent spouses and children will now be able to immigrate through an employment-based legal permanent resident visa that is being sponsored by the principal spouse’s employer. Previously, same-sex couples were forced to each obtain their own nonimmigrant or immigrant visa through an employer, making it much more difficult to keep the couple together, especially in comparison to what a heterosexual couple experienced.
While USCIS can sometimes be very slow in reacting to new law, on the very same day as the US Supreme Court issued their decision, the Secretary of the US Department of Homeland Security, Janet Napolitano, issued a statement which included the following, ”I applaud today’s Supreme Court decision in United States vs. Windsor, holding that the Defense of Marriage Act (DOMA) is unconstitutional.. . . we will implement today’s decision, so that all married couples will be treated equally and fairly, in the administration of our immigration laws.”This is a developing area, and USCIS will likely issue more detailed guidance in the future.
