The Supreme Court’s decision in United States v. Windsor (2013), which struck down the Defense of Marriage Act’s (DOMA) exclusive definition of “marriage” and “spouse” as unconstitutional, provided much for same-sex spouses to celebrate. In Windsor’s wake, immigration officials announced that same-sex binational couples may now petition for their foreign-national spouse to obtain lawful permanent residency in the United States.

Before a visa petition may be granted, however, the same-sex couple must prove that the marriage is valid under state law and qualifies under the Immigration and Nationality Act (INA). This article discusses the visa petition process with focus on how it affects same-sex couples that reside in Texas.

To determine whether a marriage is valid under state law, immigration officials generally look to the law of the state of the celebration of the marriage, but they historically have also considered the law of the state of residence to determine whether an exception applies to this general rule. In publishing answers to Frequently Asked Questions (FAQ), the U.S. Citizenship and Immigration Services (USCIS) initially acknowledged that “limited exceptions” exist where it would take into account “individual, fact-specific circumstances” in adjudicating visa petitions where the couple married in a state that recognizes same-sex marriages but resides in one that does not.

On July 17, 2013, the Board of Immigration Appeals (BIA) held in Matter of Zeleniak that a same-sex marriage will be recognized for immigration purposes if it is valid under the laws of the state where it was celebrated. Advocacy groups such as the American Immigration Lawyers Association have urged USCIS to adopt the BIA’s decision, which makes no mention of any deference to the law of the state of residence, as controlling law.

Rather than explicitly doing so, USCIS issued a revised answer to its FAQ series, declaring that “[j]ust as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage.”

Citing to an approved visa petition of a same-sex couple that wed in New York but resides in Florida (a state which does not recognize same-sex marriage), advocacy groups have been quick to believe that USCIS will not consider the law of the state of residence in assessing whether a same-sex marriage is valid for immigration purposes. Texas lawyers, however, should exercise caution in advising clients to simply run off to get married in a state that recognizes same-sex marriage only to return immediately and resume their residence in Texas before filing a visa petition with USCIS.

Although Texas does not yet have a marriage-evasion statute and cannot regard the cohabitation of same-sex couples as “criminal,” it is possible that USCIS or the BIA will recognize under Matter of Zappia (BIA 1967) that Texas — in light of its constitution and statutes — has a “strong public policy” against recognizing same-sex marriages. Such a conclusion could lead immigration officials to defer to the law of the state of Texas and thereby undermine the approval of any visa petition filed by same-sex binational couples who reside in Texas but simply married in another state.

Finally, even if a same-sex marriage is valid under state law, it still must qualify under the INA. In the pre-DOMA decision of Adams v. Howerton (1982), the 9th U.S. Circuit Court of Appeals explained that Congress has broad, if not plenary, power over immigration matters and “may enact statutes which, if applied to [American] citizens, would be unconstitutional.” Basing its decision primarily on the INA itself, it found that “[n]othing in the INA, the 1965 amendments or the legislative history suggests that the reference to ‘spouse’ . . . was intended to include a person of the same sex as the citizen in question.”

As the Supreme Court’s rejection of DOMA does not alter this alleged congressional intent of the INA, immigration officials need to address this issue squarely in a published opinion. Otherwise, Windsor and Zeleniak merely have created a regime where same-sex binational couples who married in a state that recognizes same-sex marriage but reside in a state that does not (such as Texas) may not even be considered “married” under federal immigration law as long as they reside in that state.