In 2013, the Supreme Court changed the lives of thousands of same-sex couples in America by declaring the Defense of Marriage Act (DOMA) unconstitutional in United States v. Windsor. This decision allowed same-sex spouses to receive the same marriage-based immigration benefits under federal law that “traditional marriages” had long received. Although this holding is a victory for binational same-sex couples, bias still exists in the practices U.S. Customs and Immigration Services (USCIS) uses to evaluate the legitimacy of marriages. This bias manifests itself in the proof USCIS requires to show a relationship is bona fide, proof that often assumes couples conform to a traditional American family archetype. Although theoretically same-sex couples should now have equal immigration rights, this bias may disadvantage same-sex couples in achieving the same federal benefits that the Windsor Court expressly allowed. This Note will examine the USCIS’s current spousal visa requirements and marriage fraud review process in light of the practical realities many same-sex couples face. Specifically, this Note will argue that these requirements should be amended to recognize that historic, systemic barriers and global prejudice may hinder same-sex couples from showing that their relationships are bona fide.
Marriage-Based Immigration for Same-Sex Couples After DOMA: Lingering Problems of Proof and Prejudice,
Nw. U. L. Rev.