The impact of the Supreme Court ruling on a same-sex K1

[xxlian 100]

People can easily tell you not to worry when they aren't in your shoes, but I get it. My now wife came here from Poland on K1 as well (now going through AOS). It is horrifying for us to think about too much, but none of us can say for certain what will happen. I wish I had something more hopeful to share.

[JoooonMoi 26]

Had same questions as OP. Fiancée was just approved for K1 visa and will be coming in next month. After seeing so many dang social media posts and articles regarding what Thomas said, started to get really worried. But then I had to tell myself that it's just one justice of nine and it isn't concrete that SCOTUS will be reviewing Obergefell. Anyways, don't lose hope, it'll be alright

[African Zealot 1,455]

15 hours ago, EG&XY said:

Please don’t trivialize the concerns, they are real.

Saying people should live their lives and not worry unnecessarily is not trivializing. The concerns are real so what, people should live their lives based on some event of unknown probability? This is not like the stock market where you can hedge against it.

 

You either choose to go through with your same sex union which gives you joy, or you don’t because you think it could be overturned. Seems to me a case of worrying over issues you have no control over.

 

Your choice.

[From_CAN_2_US 1,106]

23 hours ago, Kai G. Llewellyn said:

Actually that was US v. Windsor, which struck down Section 3 of DOMA of which stopped the Federal Government from recognizing same-sex marriages.

Confused by this and would welcome some education. 
 

I thought same-sex couples were unable to file for immigration benefits until the Oberfell v Hodges ruling which I think came out in 2015.

 

US v Windsor ruling came out two years earlier, and I vaguely remember reading about people keenly awaiting the oberfell case to be able to file for their partners to come to the US.

 

Clarence Thomas also mentioned the revisiting oberfell. Did he say anything about US v Windsor, and how is it relevant?

 

 

[Mike E 11,739]

Windsor was a woman whose wife died and she was trying to claim the spousal exemption from estate tax.   The case ruled that the particular section of DOMA was wrong (and Windsor received a substantial tax refund as a result).  The Wikipedia 

Article  says that after the case, DHS moved to extend benefits to same gender couples.  It doesn’t mention DoS.  
 

Thomas ruled in the minority  in the Windsor case.  

[Kai G. Llewellyn 837]

3 hours ago, From_CAN_2_US said:

Confused by this and would welcome some education. 
 

I thought same-sex couples were unable to file for immigration benefits until the Oberfell v Hodges ruling which I think came out in 2015.

 

US v Windsor ruling came out two years earlier, and I vaguely remember reading about people keenly awaiting the oberfell case to be able to file for their partners to come to the US.

 

Clarence Thomas also mentioned the revisiting oberfell. Did he say anything about US v Windsor, and how is it relevant?

 

 

I could be mistaken but Obergefell required all 50 states to issue marriage licenses to same-sex couples. It ended the mish-mash of same-sex marriage legality over the US. Windsor is what changed things at the federal level for same-sex recognition, but Windsor did not result in states being required to issue same-sex marriage licenses. I didn't pay a huge amount of attention to US Immigration at the time, but one would've thought that Windsor would've required DoS and DHS to recognize same-sex marriages for immigration benefits.

 

While Thomas didn't directly refer to Windsor, I strongly imagine he would include it in his list of cases to review...if that was within his gift, which it is not. Only circumstance that a new ruling could be made is if a new case was presented to the Supreme Court.

[Family 3,988]

17 hours ago, JoooonMoi said:

Thomas said, started to get really worried. But then I had to tell myself that it's just one justice of nine and it isn't concrete that SCOTUS will be reviewing Obergefell. Anyways, don't lose hope, it'll be alright

We’ll, the reality is that there are Five Supremes with ideology and intentions other than current law of the land…and getting USCIS on board with granting same sex benefits took Presidential action….so hopefully voters turn out Because a Good President can keep the Supreme’s Laws in check…

https://www.uscis.gov/family/same-sex-marriages

[From_CAN_2_US 1,106]

7 hours ago, Kai G. Llewellyn said:

I could be mistaken but Obergefell required all 50 states to issue marriage licenses to same-sex couples. It ended the mish-mash of same-sex marriage legality over the US. Windsor is what changed things at the federal level for same-sex recognition, but Windsor did not result in states being required to issue same-sex marriage licenses. I didn't pay a huge amount of attention to US Immigration at the time, but one would've thought that Windsor would've required DoS and DHS to recognize same-sex marriages for immigration benefits.

 

While Thomas didn't directly refer to Windsor, I strongly imagine he would include it in his list of cases to review...if that was within his gift, which it is not. Only circumstance that a new ruling could be made is if a new case was presented to the Supreme Court.

You are right:

 

https://maxlawinc.com/how-the-legalization-of-same-sex-marriage-nationwide-impacted-immigration-law/

 

“The Windsor decision allowed same sex couples to qualify for immigration benefits to the same extent as heterosexual couples.”

“Within a day of the Windsor ruling, the United States Citizenship and Immigration Services (USCIS) announced that it would start to accept same sex green card petitions.”

 

An additional source:

https://lawprofessors.typepad.com/immigration/2015/06/the-immigration-consequences-of-obergefell-v-hodges.html
 

The significance of Obergefell was with respect to AOS cases, not consular cases. This explains why some people were awaiting this ruling even after Windsor.

 

“Under certain situations immigrants who reside in the U.S. can adjust their status if they are in a bona fide, valid marriage to a U.S. citizen. It is no longer an impediment that they are homosexual and living in the U.S. in a state which doesn’t recognize gay marriage.”

Edited June 28, 2022 by From_CAN_2_US