In February of 2011 President Obama opened the closet door to reveal a major federal policy shift concerning the legal stance on same sex marriage. He directed the United States Justice Department to stop defending the Defense of Marriage Act against citizen lawsuits challenging the act as unconstitutional.

In February of 2011 President Obama opened the closet door to reveal a major federal policy shift concerning the legal stance on same sex marriage. He directed the United States Justice Department to stop defending the Defense of Marriage Act against citizen lawsuits challenging the act as unconstitutional. The Defense of Marriage Act drafted in 1996 barred any and all federal recognition of same sex marriages. It looks like the Defense of Marriage Act may need to be determined as unconstitutional by the United States Supreme Court. Some people believe that the Defense of Marriage Act unconstitutionally bars equal protection rights to gay couples. In any case, full federal recognition of same sex marriage, or recognition of same sex marriage by all States within the United States, based on a federal law or Constitutional Amendment would likely be required before the United States Department of Immigration could alter or amend its current requirements regarding recognition of a legal marriage status.

Hold Placed on Denying Citizenship Applications Based on Same Sex Marriage
In March of 2011 the Obama administration ordered the United States Department of Immigration to place a hold on deportations based on citizenship applications involving same sex marriages. That means that a foreign national that marries a United States citizen in a same sex union and thereafter applies for citizenship based on that marriage would not automatically have their application denied by the Department of Immigration based on a Department of Immigration refusal to recognize the same sex marriage. At this point those applying for immigration rights based on a same sex marriage can expect that they will not be deported and that they may be allowed the usual spousal right to work in the United States associated with the issuance of green card benefits for as long as the Defense of Marriage Act remains in federal litigation concerning constitutional validity.

Evidencing a Legal Marriage and the United States Department of Immigration Requirements
Right now all that is required of those petitioning for citizenship rights is that they be able to produce evidence for the United States Department of Immigration that they have been married in a legally binding civil ceremony in the United States or in a foreign nation. This usually involves producing a valid civil marriage certificate of some kind. Several States now offer civil marriage status to same sex marital applicants. These State marital unions are legally binding ceremonies and meet the base line criteria required by the United States Department of Immigration to evidence a valid marriage. What happens next? Stay tuned because this particular immigration issue is still extremely fluid.

Please feel free to set up a free initial consultation with Attorney Hendrik Pretorius today to consider your options.