DOMA declared unconstitutional: Can binational gay partners benefit from this?

If you are a U.S. citizen, should you go and file a green card application for your foreign same-sex spouse, whom you married in Massachusetts, or in any other state or country allowing same-sex marriages? Although Obama’s announcement is a step forward for gay rights, getting full immigration benefits for you and your spouse will still require much legal fighting.

If, today, you submit a green card application for your foreign-born same-sex spouse, USCIS will deny the application. Your only recourse is to appeal the decision, most likely all the way to the Supreme Court. Interestingly, keeping immigration issues out of a DOMA challenge is a deliberate strategy of LGBT rights organizations. The thinking there is that, because the federal government has complete authority over immigration matters, it is almost impossible for courts to find a law unconstitutional when it involves immigration. This strategy, therefore, tries to increase the likelihood that a judge will decide that DOMA is unconstitutional.

For the moment, the USCIS will unquestionably deny your same-sex partner's application, until Congress repeals the law or the Supreme Court concludes that it is unconstitutional. While bringing your spouse to the U.S. is not yet possible, the Obama Administration’s decision to pull back its defense of DOMA is a sign of hope and a move in the right direction.