Issue before Supreme Court could apply to spouse visas for same-sex couples

| Jan 21, 2013 | Family Visas |

Many issues that arise in court are generally seen as being confined to a specific area of law. For instance, most people do not expect to see an issue arising in criminal a criminal case discussed on an immigration law blog. However, followers of this blog know that an immigrant’s criminal record may impact a removal issue.

Moreover, last February this blog discussed a ruling in a criminal case that rose to a federal court of appeal. In that story, the appellate court referred to the Immigration Law Sourcebook in its legal analysis of the criminal law issue.

The law is not necessarily linear-at times, the law can act more like a web. Arguments in one area of law may impact other areas. The United States Supreme Court is slated to hear an appeal involving tax law issues that some commentators say could impact immigration law. The appellate dispute concerns taxes and tax benefits available for spouses in a same sex marriage.

Florida law does not recognize same sex marriages, civil unions or domestic partnerships. As many as 10 states have enacted some form of law recognizing same sex marriages. But immigration law is a federal issue. The federal Defense of Marriage Act defines marriage as exclusively between a man and a woman.

The effect of that federal law on immigration issues means that a U.S. citizen spouse in a same-sex marriage cannot sponsor an immigrant spouse for legal residency under U.S. family immigration procedures. Commentators estimate that more than 36,000 couples in the United States involve married same-sex and binational spouses.

A U.S. citizen in a heterosexual marriage may file a petition with immigration officials to sponsor his or her spouse for permanent residency. A same sex spouse cannot because federal law does not recognize same-sex marriages.

The tax case heading before the Supreme Court is asking the high court to rule on the constitutionality of the provision that denies tax benefits to spouses in a same-sex marriage. Commentators say that the same provision of DOMA at issue also applies in immigration law.

Source: Washington Post, “Federal marriage law may force deportation of many immigrant gay spouses” Pamela Constable, Dec. 29, 2012