On July 17, 2013, the Board of Immigration Appeals (BIA) – Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013) – held the following:
“Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419, 2419 (1996), 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.”
Section 3 of the Defense of Marriage Act (DOMA) stated the following:
“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to aperson of the opposite sex who is a husband or a wife.”
The BIA, in Matter of Zeleniak, supra at 159, recognized the U.S. Supreme Court’s ruling in United States v. Windsor, 133 S. Ct. 2675, 2695-96 (2013), which determined section 3 of the DOMA is unconstitutional as a violation of the constitutional guarantees of equal protection and due process.
The BIA, therefore, in Matter of Zeleniak, supra at Id., held that “[t]he Supreme Court’s ruling in Windsor has therefore removed section 3 of the DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated.”
Furthermore, the BIA clarified in Matter of Zeleniak, supra at Id., that the “ruling is applicable to various provisions of the Act, including, but not limited to, sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208(refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status), 8 U.S.C. §§ 1101(a)(15)(K), 1153, 1154, 1157, 1158, 1182, 1227, 1229b, and 1255 (2012).”
Therefore, a U.S. citizen, who has entered into marriage with a foreign national in a state which recognizes the marriage as a legally valid one, may file a visa petition for his or her spouse. The U.S. petitioning spouse will still have the burden of proof of demonstrating the marriage was entered into in good faith (i.e., the couple entered into marriage for the purpose of forming a life together). In addition, it is nonetheless important to assess whether the foreign national spouse is eligible to seek adjustment of status in the United States for permanent residence (i.e., a Green Card) or needs to seek permanent residence through consular processing.