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Pennsylvania’s DOMA Law Struck Down as Unconstitutional

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On Tuesday May 20, Judge John Jones III for the US District Court for the Pennsylvania Middle District struck down the state’s ban on same-sex marriage in Whitewood v. Wolf. The judge agreed with the plaintiffs’ argument that the state’s Defense of Marriage Act (DOMA) violated the 14th Amendment’s Equal Protection Clause by refusing to recognize out-of-state same-sex marriages and marry same-sex couples in the state. Pennsylvania’s Defense of Marriage Act was enacted in 1996 amidst the national fears that states would be required to recognize same-sex marriages performed in other states if those states had legalized them.

 

The United States passed a federal Defense of Marriage Act in 1996, as well, guaranteeing that states did not have to recognize out-of-state same-sex marriages and federally defining marriage as a “union between a man and a woman.” The Supreme Court struck down Section 3 of DOMA in United States v. Windsor. Even though individual states had sanctioned same-sex marriages, federal benefits available to married couples were prohibited from married same-sex couples through DOMA. For instance, Windsor was in court contesting a $350,000 estate tax liability.

 

As Governor Corbett has announced that he will not be appealing this decision, Pennsylvania is the 19th state to legalize same-sex marriages. Couples seeking to be married should be aware of their states’ laws, especially as they pertain to same-sex marriage and state and federal implications. States still do not have an obligation to recognize same-sex marriages, so residency remains an important question to consider. Immigration issues can create extra layers of complication. The majority of countries throughout the world do not recognize same-sex marriage, performed within that country or in a different country.

 

In August 2013, Secretary of State John Kerry announced that the United States would begin recognizing legal foreign same-sex marriages. For example, an immigrant same-sex couple validly married in Great Britain will have that marriage recognized in the United States. This represents a great victory for same-sex immigrants and should avail them to immigration opportunities otherwise denied to them. For example, a U.S. citizen who is married to an immigrant of the same sex can now sponsor their spouse for permanent residence in the United States. The Law Offices of Andrew Wood applauds PA’s recognition of marriage equality, which will afford same-sex couples married in Pennsylvania greater smoothness in the immigration process.

DHS Proposes H-4 Employment Authorization

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The Department of Homeland Security (DHS) has published a proposed rule available for public comments that would allow certain eligible H-4 dependent spouses to apply for employment authorization. An H-4 visa is for the spouses and children under 21 years of age of H-1B visa holders, who are employed in the United States in specialty occupations. DHS touts this possible regulatory change as an important way to alleviate the economic burdens that dependent spouses of principle H-1B holders face. Another important benefit could be easing the transition from nonimmigrant to lawful permanent resident status. The possibility of employment authorization would be limited to H-4 visa dependent spouses where the principal H-1B spouse is the beneficiary of an approved I-140 EB visa petition and where the H-1B spouse has been granted a post-6th year H-1B extension under the American Competitiveness in the 21st Century Act.

 

DHS announced this proposed rule as a possibility over a year ago. The ostensible reason for authorizing H-4 dependents for employment is to increase retention of highly skilled H-1B workers in the United States. One of the pressing problems, which is mentioned frequently in the public comments section, is that the wait for long-term permanent residence is lengthy. This may also have the effect of encouraging the entry of H-4 eligible spouses who were separated from their H-1B spouses in order to continue their own careers in the United States. The public comments contain many personal stories of immigrants and their spouses facing problems that this proposed rule would help solve, such as talented spouses who were excelling in their careers in their home country being precluded from practicing their professions in the United States. Opposition to the proposed rule focuses on concern that U.S. citizens will be laid off in favor of cheaper labor. Immigrants have expressed concerns their fear that H-4 holders will end up working in low-skilled position in restaurants and gas stations, rather than pursuing their career paths.

 

The public comment was made available on May 12 and comment period will end on July 11. If you would like to add your own comment, you may here.