Same-sex marriage laws have immigration consequences in Georgia

Immigration reform and same-sex marriage are some of the most talked about legal issues of the day. While Georgia does not recognize same-sex marriage, currently 19 states and the District of Columbia do - and more could very well be on the way.

The path to marriage equality in Georgia has met with more resistance than in some other states. For example, recently Georgia's Attorney General restated his opinion that Georgia's 2004 law banning same sex marriage was constitutional and that his office would defend the law in court. Even if Georgia's ban on same-sex marriage remains, however, changes at the federal level mean that some immigrants in a same-sex marriages may have a path to legal residency and citizenship, regardless of state law on the issue.

How same-sex marriage affects immigration status

In 2013, the U.S. Supreme Court struck down portions of the Defense of Marriage Act, a federal law that allowed states to refuse to recognize same-sex marriages from other states and denied certain federal benefits to same-sex couples. The Supreme Court held that this law was unconstitutional in some important ways. Among other significant aspects, the ruling had immigration ramifications. For example, a week after the decision, then-Secretary of Homeland Security Janet Napolitano said that the U.S. Citizenship and Immigration Services (USCIS) would treat visa petitions on behalf of same-sex married couples equally to heterosexual marriages.

However, that position did not affect married foreign nationals who already had a deportation order. Under federal law, a foreign national cannot receive an immigration benefit until 10 years after he or she has left the U.S. This meant that immigrants already with a deportation order were out of luck even if in a valid same-sex marriage.

Immigrations and Customs Enforcement to review deportations of same-sex couples

In June of 2014, almost a year after the Supreme Court's DOMA ruling, ICE officials indicated they will reopen old deportation cases in light of new federal law. In order to be eligible for review, the marriage between the U.S. citizen and foreign national must lawfully recognized by a state with same-sex marriage and not be entered into solely for its immigration benefit.

In addition, the ICE policy will only apply to marriages in which the immigrant is eligible for permanent residence in the United States. Finally, the foreign national must also prove ties to the United States and have no serious criminal record.

In the last year, relatively few same-sex couples have sought the immigration benefits related to same-sex marriages in Georgia; for one, couples must marry in a different state. Still, the benefits provided by a legally recognized same-sex marriage should not be overlooked.