Defense of Marriage Act (DOMA)
Immigration For The Gay Community

  • If you had a case where the I-130 has been denied due to same sex marriage under the Defense of Marriage Act (DOMA), we may now file in federal court to challenge the denial as unconstitutional
  • Same-sex married couples who have received attention this year, particularly after the Department of Justice’s Feb. 23 2011 decision that the Defense of Marriage Act — which has prevented the Department of Homeland Security from considering green card applications based on marriage for those couples – is unconstitutional and will no longer be defended by DOJ in court
  • Lesbian and gay noncitizens face serious impediments to obtaining legal immigration status through marriage. The Board of Immigration Appeals (BIA or Board) relies on Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, which defines marriage as a union between one man and one woman, in determining whether a marriage is valid for immigration purposes. See Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005). Pursuant to 8 C.F.R. § 103.37(g), all officers of the Department of Homeland Security as well as immigration judges are bound by Board decisions and decisions of the Attorney General. Accordingly, the immigration agencies bar lesbian and gay U.S. citizens and permanent residents from successfully petitioning for their spouses. Similarly, noncitizens are precluded from obtaining other immigration benefits or relief from removal – such as a waiver or cancellation of removal – based on a marriage involving a gay or lesbian couple
  • The New York Times reported previously, “Federal officials…canceled the deportation of a Venezuelan man in New Jersey who is married to an American man.”
  • Ways in Which DOMA affects Immigration benefits: There are a number of immigration benefits and forms of relief from removal that depend on the existence of a valid marriage. Thus, the validity of a marriage can be an issue in an affirmative application for an immigration benefit filed with U.S. Citizenship and Immigration Services (USCIS) or in an application for relief from removal filed with an immigration judge (IJ). The following are examples of situations where section 3 of DOMA may be implicated.
  • Adjustment of status based on a family-based visa petition
    • Adjustment of status based on being a derivative of a beneficiary of a visa petition (family-based or employment-based)
    • Cancellation of removal requiring a qualifying relative
    • Waivers that require a qualifying relative (such as § 212(h) and § 212(i))
    • Derivative beneficiary of an asylum application
    • VAWA
    • NACARA


The hiring of a lawyer is an important decision that should not be based solely upon advertisements. The information contained in this website is provided for informational purposes only, and should not be construed as legal advice on any subject matter. This Web site is not intended to be an advertisement or solicitation. Material contained in the Law Offices of Caro Kinsella web site ( is for general information only and does not constitute legal advice or solicitation of legal services. Transmission of information from this site is not intended to create, and its receipt does not constitute, an attorney-client relationship between us and the reader. Caro Kinsella, Attorney at Law expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this website. The transmission of the website, in part or in whole, and/or any communication with us via Internet e-mail through this site does not constitute or create an attorney-client relationship between us and any recipients.

Some links within the website may lead to other websites, including those operated and maintained by third parties. Caro Kinsella, Attorney at Law includes these links solely as a convenience to you, and the presence of such a link does not imply a responsibility for the linked site or an endorsement of the linked site, its operator, or its contents. Nothing in this website or the linked blogs/websites should be used as a source of legal advice. Each legal problem is different, and past performance does not guarantee future results. This website does not create an attorney-client relationship between you and Caro Kinsella, Attorney at Law. Nor is this website intended to do so.

Custom Website Design by 561Media