Gay immigrant partners to get equal treatment in applying for visas

Both the Obama administration and the GOP have pivoted swiftly on key regulatory and legal issues in the wake of last month’s Supreme Court decision on gay marriage that invalidated a key portion of the federal Defense of Marriage Act.

The federal government is moving to revamp regulations to improve the treatment of same-sex couples, while House Republicans earlier this month withdrew from a Massachusetts case challenging DOMA’s constitutionality after spearheading the move to defend it in 2011.

A significant step within the federal government came when the Department of Homeland Security finalized new guidelines on immigration petitions for same-sex couples, saying that visa applications for a foreign national in a same-sex marriage will be treated in the same manner as applications for heterosexual unions.

A same-sex engagement has the same effect, according to guidelines from U.S. Citizenship and Immigration Services. Administration officials said they would also reopen past petitions or applications that were denied solely because of the section of the law — now deemed unconstitutional.

The new rules finalized Friday are one of the first aftershocks of the 5-4 Supreme Court ruling overturning key sections of the 1996 law, which forbids the federal government from recognizing gay marriages in administering programs and determining benefits.

Another was the quiet withdrawal from a case in Massachusetts by the House Bipartisan Legal Advisory Group, controlled by Republicans, in which gay members of the U.S. military had challenged the constitutionality of DOMA.

Though the group said in a brief that the constitutionality of a section similar to the one struck down by the Supreme Court is still in question, “the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute.”

As for the federal government, Secretary of Homeland Security Janet A. Napolitano had directed immigration services shortly after the ruling “to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

Attorney General Eric H. Holder Jr. said the decision affects a broad array of federal laws, and “at the president’s direction, the Department of Justice will work expeditiously with other executive branch agencies to implement the court’s decision.”

The Justice Department’s Board of Immigration Appeals said in a July 17 ruling that Section 3 of DOMA “is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the state where it was celebrated.”

Immigration officials were a bit less clear on how to deal with cases involving couples who were married in a state that recognizes gay marriage but live in a state that does not, saying that as a general matter, the department looks at the law of the state or district where the marriage took place. Gay marriage remains illegal in about three dozen states, even after the high court ruling.

Gay and lesbian couples had become a major flashpoint in the debate over the immigration bill passed by the Senate last month. Democrats had said they wanted to use the debate to extend immigration benefits to same-sex couples, but Republicans supporting a comprehensive reform bill had warned that move would break up the tenuous coalition backing the bill by scaring off Catholics and evangelical supporters.

Sen. Patrick J. Leahy withdrew an amendment that would have extended the benefits after Republicans indicated they would bolt from the bill if the amendment was included. After the Supreme Court’s decision, the Vermont Democrat announced he wouldn’t seek a floor vote on the amendment and applauded Homeland Security’s move Friday.

Coupled with House Republicans’ step back from defending the law in court, the question of such immigration benefits for same-sex couples may be answered — for now — on whatever legislation the House decides to advance and possibly put into conference with the Senate bill.

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