It's a historic day in Washington State. Thanks to the voters who approved Referendum 74, same sex couples can legally marry starting today. The referendum went into effect on December 6, when couples started applying for marriage licenses. Along with the eight other states that permit same sex marriage, what does this new historic opportunity mean for couples where one or both spouses are foreign nationals? This blog post looks at the current status of options for foreign nationals to legally come to the US, options if foreign nationals lack valid status, the potential impact of pending cases before the US Supreme Court, recent Obama Administration activities, and Congressional and advocacy efforts.
Spouse Sponsorships for Green Cards and Other Spouse Provisions
First the bad news. So long as the federal government continues to enforce the Defense Against Marriage Act of 1996 (DOMA) in the immigration area, US citizen and green card holding spouses may not sponsor their foreign national same-sex spouses for a green card. In immigration law, the rule is that the federal government must honor the laws of the jurisdiction where marriages (divorces, adoptions, etc.) take place, EXCEPT that under DOMA, marriage is only recognized between a man and a woman. Therefore, until Congress eliminates DOMA or DOMA is found to be unconstitutional by the US Supreme Court, foreign nationals in same sex relationships will continue to be discriminated against for immigration sponsorship purposes. By sponsorship, I mean the US citizen spouse cannot have form I-130 approved on behalf of a same sex spouse as an immediate relative, nor can a lawful permanent resident expect to have a form I-130 visa petition approved for a same sex spouse in the second preference FB 2A category.
The term "spouse" appears in other contexts in immigration law besides direct sponsorships for green cards. This includes qualifying relatives for waivers of inadmissibility and cancellation of removal where typically the foreign national has to show "extreme" or "unusually exceptional" hardships to a green card holding or US citizen spouse, child or parent. In addition, there are provisions under the Violence Against Women Act for spouses to self-petition in the case of domestic abuse. There are also provisions for surviving spouse beneficiaries, where the petitioning spouse dies and the beneficiary wants to continue their cases through substitute petitioners. Finally, there are "dependent" provisions for spouses of principal applicants for asylum, green cards, diversity visas, nonimmigrant visa holders and more where the dependent spouse can obtain status through the principal spouse. DOMA's repeal or a US Supreme Court finding that DOMA is unconstitutional would fix these problems for same sex couples.
US Supreme Court Takes on Several DOMA cases
The good news is that on December 7, 2012, the US Supreme Court decided to hear two important cases, Windsor v. U.S., as well as the California Prop 8 case, Hollingsworth v. Perry. Oral arguments will be in the spring with decisions expected next June 2013. This means there is hope that foreign national spouses will eventually be able to be sponsored directly for green cards or make use of some of the other spouse provisions mentioned above if the US Supreme Court determines that DOMA is unconstitutional.
Windsor v. US deals with discriminatory application of federal estate taxation between same sex and heterosexual couples. In this case, Ms. Windsor's partner had died and Ms. Windsor was subject to an estate tax that would have been zero had she been married to a man. The Second Circuit Court of Appeals struck down DOMA.
The Hollingsworth v. Perry lawsuit charges that voters improperly overrode a California Supreme Court case allowing a constitutional right to same sex marriage. The voters had approved Proposition 8 that approved a constitutional amendment prohibiting marriage except between a man and a woman. A federal court judge and the Ninth Circuit Court of Appeals struck down Proposition 8, although in a very limited fashion such that the outcome of this case may be limited to California only. For a more detailed discussion of both cases, see the SCOTUS Blog.
The Obama Administration and DOMA
The Obama Administration has shifted its attitude toward enforcement of same sex relationships and DOMA. First, the Administration stopped enforcing its "Don't Ask Don't Tell" policy in the Department of Defense. In 2011, Eric Holder, the Attorney General, on behalf of the Obama Administration, decided to no longer defend DOMA in pending litigation before the courts. However, the Bipartisan Legal Advisory Group intervened as a party to keep the litigation going to defend the Congressional Act (DOMA). Meanwhile, there are other DOMA lawsuits pending around the country, hoping to work their way up to the US Supreme Court. One such suit is Blesch v. Holder, filed in April 2012 in the Eastern District of New York, Federal District Court. The plaintiffs in this case specifically challenge the constitutionality of DOMA as applied to immigration specifically in relation to mixed status couples. The plaintiffs are several couples married in different countries and different states involving foreign national spouses married to US citizens. They charge that while the Obama Administration vowed not to defend DOMA in court, it is still enforcing it in the immigration area by denying I130 visa petitions. However, in July 2012, the Bipartisan Legal Advisory Group represented by the Solicitor General defending DOMA, asked the court to put Blesch on hold pending resolution of the Windsor and Hollingsworth cases.
Immigrant and LGBT advocates have asked the administration to allow filing of spouse petitions and to hold them in abeyance rather than deny them while the Supreme Court cases get decided. So far, the Administration has declined to do so and I-130 visa petitions continue to be denied, including on appeal. Therefore, whether to file now or wait until the US Supreme Court rules is a strategic decision couples should make with the advice of counsel. Some couples have filed I-130s anyway as a method to challenge the government's position and to bring litigation. If the petition is denied, it can be appealed to the Board of Immigration Appeals (BIA) and from there to the federal courts. However, the BIA is also subject to DOMA and is bound to deny petitions as well. Moreover, it can take a year or more for the BIA to rule.
Even if DOMA is repealed or found to be unconstitutional, same sex couples will be subject to the same DHS and State Department rules for spouse-based immigration. Ability to resolve a case in the US will depend upon whether the person was "inspected and admitted or paroled", whether the applicant is eligible to adjust status under "245(i)" or some other program. If not, applicants will need to finish their cases at US Consulates abroad. For persons out of status, the act of going to the Consulate could trigger one of the bars to reentry, requiring a waiver of inadmissibility. DHS is about to change waiver procedures that may provide some predictability and provisional approvals in advance of going to the consulates, which will benefit same-sex and heterosexual couples alike, should DOMA come to its demise. Therefore, anyone out of status, should seek legal advice about eligibility, process and procedure for immigrating even if DOMA dies and same-sex partners can begin to sponsor each other.
Legal Immigration Alternatives to Spouse Sponsorship
For foreign nationals desiring to come to the US in legal status or to maintain or extend legal status, there are a few alternatives. As mentioned in my earlier blog post, Same-Sex Marriage in Washington State: What Would that Mean for Immigrant Couples? I discussed the various legal immigration options for mixed status and dual foreign national couples. A brief recap includes these options for dual national or bi-national couples:
- "Co-habitating partners" of foreign diplomats and US foreign Service officers (A & G, NATO) visa holders can get A and G visas as "immediate family members." (See my earlier blog post, Impact of DOMA Developments, for details.)
- "Cohabitating partners" of students and other temporary workers holding F, J, M, E, H, I, and L visas who would ordinarily qualify as dependents of the principal visa holder but for DOMA can receive long-term (one-year) B-2 tourist visas, since the foreign national cannot qualify as a dependent "spouse." However, B-2 visa holders cannot work in the US and their status may not be as long as the principal spouse/partner's status.
- Individual eligibility for:
B-1 business visitors (on behalf of companies abroad) or B-2 tourists
Students, exchange visitors, trainees F-1, M-1, J-1, H-3 visas)
Work visas such as H-1B, H-2A/H-2B, I, L-1, E-1/E-2, O, P, Q, R visas, etc.)
Victims of crimes in the US or trafficking - U, T visas
Another possibility is filing for asylum where the foreign national has previously suffered persecution or has a well-founded fear of future persecution "on account of" race, religion, nationality, political opinion, or membership in a particular social group. Asylum is very difficult to get and will depend upon the specific facts in the case and country conditions. Unfortunately, there has been a lot of fraud in this area and sexual orientation cases will be heavily scrutinized. The most important aspects of asylum are that the applicant must be credible, the person must have faced or fears future harm to life, liberty or freedom, and that fear or past harm must be "on account of" or "because of" the person's membership in a particular social group, i.e., based on sexual orientation, or one of the above-listed grounds. A related application to asylum is "withholding of removal" and "Convention Against Torture (CAT)", both of which have higher standards of proof. Note, that asylum and withholding are obtained from within the USA, while refugee status is obtained abroad under the same standards above. Asylum must be requested within one year of admission to the USA.
When advising same sex couples, this Seattle immigration law firm looks for potential opportunities for citizenship, such as whether the foreign national may actually be a US citizen and not know it through automatic or derived citizenship through the generations, or through US military service, Native American ancestry, and other lesser known grounds. We also inquire about interest in military programs such as the recently re-instituted "MAVNI" program where the US Department of Defense is looking for individuals from certain countries with specified medical or language skills that can lead from valid student or other nonimmigrant status directly to US citizenship if the foreign national is willing to join the military.
In the area of green card categories, there are other family based methods of immigration through parents, US Citizen siblings and US Citizen children over 21, employment based categories based on employer sponsorship and recruitment of US workers or self-sponsorship depending upon the foreign national's credentials, reputation in the field, and job opportunities. There is also the annual diversity visa lottery, although Congress has proposed to eliminate it. Elimination of that program is controversial. There are also methods of entrepreneurship and investor visas that we evaluate when meeting mixed status or dual-foreign national couples. Some of the entrepreneur categories depend on the client's country of nationality; others depend upon the amount of money invested, the volume and location of trade, or whether there are US facilities of a company abroad where the foreign national has been working. In other words, we look at these cases holistically in relation to all potential temporary and permanent visa categories as well as opportunities for citizenship.
What if the foreign national spouse/partner is out of status?
In this situation, we must look at a host of other options and issues. Would the foreign national be subject to a three-year, 10-year or permanent bar if there was a way to immigrate in one of the categories mentioned above? Has the person been deported before or has the person committed a crime? We have to do a complete assessment of the person's background, reasons for being out of status, whether there are any grounds of inadmissibility or removability, and then look at visa, green card options or immigration court relief options. Persons in proceedings may have avenues for relief from removal such as asylum, withholding of removal, CAT, cancellation of removal, adjustment of status through other family members, various waivers or voluntary return.
Most recently in the last two years, the Obama Administration has issued several memos concerning the government's enforcement priorities, called "prosecutorial discretion." These memos give ICE, CBP, USCIS and the immigration courts guidance on enforcement priorities based on budgetary constraints. Agencies are advised to consider a list of potential humanitarian factors, including same-sex partnerships or marriages, to determine whether to initiate removal proceedings, whether to continue removal proceedings, or whether to carry out previous deportation orders. If prosecutorial discretion is granted, there may be no removal case at all, or a pending case might be closed or terminated. Closing or termination of a case may leave an undocumented person with no imminent fear of deportation, but the person may also have no avenue of relief either or the case can later be reopened. If the person was already ordered removed, then the individual might be entitled to deferred action and work authorization for a temporary period of time. Some removal cases are terminated where there are green card or visa options before USCIS or abroad. There are all very fact-specific, case by case issues that must be analyzed individually.
We have received numerous calls from people asking if an October 5, 2012 letter by Department of Homeland Security Secretary Janet Napolitano allowing for consideration of same-sex relationships in determining whether to exercise favorable prosecutorial discretion allows US citizens and green card holders to now sponsor their foreign national partners. The answer is "no." As explained above, until DOMA is repealed or found unconstitutional, petitions cannot be approved for green cards on behalf of same sex partners. The prosecutorial discretion memos apply only to people who are out of status, as it pertains to the larger issue of whether the government should initiate removal proceedings because the person lacks legal status, or whether proceedings should be continued or removal orders carried out. Same-sex relationships are just one factor among many for the government to consider in such circumstances. In exercising its enforcement discretion, the government has to weigh the good facts with the bad and against their enforcement priorities. Priorities for enforcement actions include recent arrivals, repeat immigration offenders, and people who are threats to public safety, or national security.
Younger people who qualify for Deferred Action for Childhood Arrivals (DACA), may want to apply for that program now, which would also result in work authorization. They must be out of status and meet certain residence, education and age requirements. See my earlier blog posts on whether to apply for DACA and the risks and benefits to consider. There are other specialized programs such as Temporary Protected Status, NACARA and others that are more country-specific to consider with the advice of counsel.
There have been a few successes in the immigration court context pertaining to same-sex couples in terms of legal procedures and maneuvers, but most of these deal with individuals who are out of status and involve the favorable exercise of discretion in the prosecutorial discretion area where the person's same-sex partner relationship has been a factor considered by the Immigration Court or ICE that resulted in removal cases not being initiated or cases were closed or terminated.
On the Legislative Front
The Uniting American Families Act previously introduced into Congress during past terms is still an important piece of legislation to push for as it would fix the status of LGBT couples even if DOMA is upheld. On November 28, 2012, the Congressional Hispanic Caucus called for Comprehensive Immigration Reform to include certain fundamental principals, including provisions to "protect the unity and sanctity of the family, including the families of bi-national, same-sex couples, by reducing the family backlogs and keeping spouses, parents, and children together."
As I have said before in other blog posts,www.ImmigrationEquality.org has excellent resources on immigration FAQs and advocacy issues for LGBT couples. Another great resource for promoting stories and videos about international couples is The DOMA Project, which includes a way to sign a petition to the President asking that his Administration stop denying I-130 Visa Petitions. You'll see, however, that most of the cases for which The DOMA Project has had success deal with the implementation of the prosecutorial discretion memos. Although the Administration can hold the I-130 visa petitions in abeyance, it has no authority at this point to grant I-130 Visa petitions for LGBT spouses until Congress repeals DOMA or the US Supreme Court holds DOMA to be unconstitutional.
Should You Get Married?
Now that same sex marriage is valid in Washington, New York, Massachusetts, Vermont, New Hampshire, Connecticut, Iowa, Washington, the District of Columbia and soon in Maryland and Maine, as well as in several countries, should bi-national and dual national couples get married? If love and family are paramount, why not? However, for immigration planning purposes, it may or may not make sense to do so depending upon the facts and priorities in each case, need to travel in and out of the US, and need to work. For example, by marrying a US citizen while intending to seek a nonimmigrant visa or entry into the US in a category that requires proof of a permanent home abroad, such as B-2 tourist, F-1/M-1 student, J-1 exchange visitor, TN (NAFTA) workers and some other categories, getting married may actually make those visas more difficult to receive because of the requirements to prove nonimmigrant, temporary intent. Foreign nationals should not lie on visa applications or to border officers as false statements can come to bite you back in the future making longer term immigration more difficult. (Plus, it is perjury, a crime, to make a false statement to a government officer or on an application.)
Everyone coming to the US is presumed to be coming permanently. Therefore, the visa categories that require proof of a temporary intent are sometimes harder to overcome the presumption, especially if you are from a developing country without much in the way of assets, income or family ties. The most common reason visas or entry to the US are rejected is because of "INA 214(b)" or "pre-conceived intent". Pre-conceived intent is where the person really has a permanent intent to stay in the US indefinitely and cannot adequately prove a bona fide temporary intent or permanent home abroad. Thus, getting married to a US citizen before or after entry into the US, depending upon the timing, could be a bar to some of the temporary intent visas. Moreover, the new State Department online visa form now asks if the applicant is in a marriage, civil union or registry. The form must be "signed" or submitted under penalty of perjury. Since you cannot answer untruthfully, if you answer truthfully, you might not be accepted for the visa unless you can prove adequate ties to the home country and bona fide temporary intent for the purpose of your travel. It is probably best to discuss your marriage plans with immigration counsel first so that together you can map out a strategy and long term plan that meets your immigration needs, qualifications and family priorities.
For those persons who are now without lawful status, it may not hurt to get married, and in fact may help as one humanitarian factor to consider for prosecutorial discretion reasons described above. However, since only a few states have same sex marriage laws, travel between states while undocumented could be problematic if you get pulled over by ICE or CBP if you end up in the wrong place at the wrong time.
Make your concerns heard by Congress! Ask Congress to promote and support equal treatment under the immigration laws for LGBT couples by repealing DOMA. Contact President Obama requesting that DHS/USCIS hold rather than deny I-130 visa petitions for LGBT spouses pending Supreme Court or Congressional action. Some brave same-sex couples are going ahead and getting married (or may already be married) and filing I-130 visa petitions, knowing they will be denied, and denied on appeal, but are doing so in numbers to step forward and litigate and/or to educate the public and Congress about their plights and willingness to fight the system.