On July 17, 2013, the BIA issued a decision overturning the prior denials (the petition had been denied twice prior to this decision), holding that the Supreme Court decision has removed the impediment to the recognition of lawful same-sex marriages if such marriage are valid under the laws of the State where celebrated. While it was clear from the Supreme Court decision and from subsequent pronouncements on the subject by officials of the Department of Homeland Security that Windsor paved the way for a variety of immigration benefits for same-sex married couples, Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013) is the first official immigration decision regarding one of these benefits. Indeed, we expect a significant number of same-sex married couples whose marriages are lawful in the jurisdictions in which they were performed to file marriage-based immigration petitions.

On July 17, 2013, the Board of Immigration Appeals reversed the denial of an immediate relative I-130 petition and held that DOMA no longer is a bar to the recognition of same-sex marriages for immigration purposes as long as they are valid under the laws of the State where the marriage was celebrated. Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA 2013). There are a variety of relationships, both same-sex and heterosexual, which may equate to marriage under U.S. and foreign laws.