BIA Holds Same Sex Marriage Valid for Immigration Purposes if Valid Under State Law

In its decision dated July 17, 2013 in Matter of Zeleniak, the Board of Immigration Appeals, the appellate body reviewing USCIS decision on immigrant visa petitions, held that the Defensive of Marriage Act (” DOMA”) is no longer an impediment to approving a same sex marriage immigrant visa petition, provided the marriage is valid in the state where the marriage took place.  In Zeleniak, the same sex marriage was celebrated in Vermont which recognizes same sex marriage. While Zeleniak was pending, the U.S. Supreme Court held Section 3 of DOMA unconstitutional.  That section had defined marriage for federal purposes as a legal union only between a man and a woman.  The BIA remanded Zeleniak for a determination regarding the bona fides of the marriage, the last inquiry prior to petition approval.

Stewart Rabinowitz practices United States immigration and nationality law. He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. Rabinowitz & Rabinowitz, P.C. is an immigration law firm representing businesses, families, and individuals.