At first, it sounds so simple: If the US Supreme Court determines that the Defense of Marriage Act (DOMA) is unconstitutional, then many same-sex spouses expect to file their immigration petitions with USCIS immediately. But, I recommend caution. Getting married does not always solve a foreign national’s immigration problems. In addition, the path to status is long and arduous. There is nothing speedy about it. More importantly, there are many issues to consider before rushing to file. The mere act of being able to marry doesn’t by itself ensure legal immigration status. I’m always surprised in my Seattle immigration law practice how many heterosexual couples think that just getting married solves all their problems, when in fact getting married may be only the beginning of a long journey to legal status. Occasionally, getting married doesn’t help at all due to the foreign spouse’s immigration or criminal history. Therefore, I recommend having a consultation and thorough analysis of one’s case by a competent lawyer who understands immigration and LGBT issues.
A few weeks ago, I attended a very informative training held by Immigration Equality for its constituent attorneys. There are so many interesting issues to think about, some of which are quite complex or require further advocacy or legal fixes beyond the DOMA decision. As I head off to this week’s annual American Immigration Lawyers Association Conference in San Francisco, with the prospect of networking with hundreds of lawyers in a room together discussing the impact of DOMA’s demise, I can just imagine all the different scenarios and questions that will come up from analyzing the cases we see daily in our practices.
The following are just a few interesting questions raised by the prospect of DOMA’s demise, should it become reality. Some of the questions have easier answers than others, several remain unresolved, or the answer would depend upon the facts:
1. To which marriages will the ruling apply: place of domicile or place where the marriage was celebrated? Given that only some states and some countries have legalized same-sex marriage, this could be an interesting issue. Generally, for immigration purposes, the government recognizes the law of the place of celebration. There are special rules, however, that apply to transgender individuals and couples. Speaking of domicile, there are many stories of bi-national couples who had to leave the U.S. because the foreign national was either deported or ran out of authorized stay. The US citizen petitioner must eventually be domiciled in the U.S. for affidavit of support purposes, which means the citizen must return to the US on or before the foreign national’s immigration back to the US.
2. Where can one marry? A list of states and countries can be found on the Immigration Equality website. The more interesting question is where can people get divorced? Some states have residency requirements. In addition, if a waiver of inadmissibility is required along with a qualifying relative for the waiver (such as a US citizen or green card holding spouse), how and where was that relationship established and was it legally celebrated?
3. What would be the effect on civil unions? That is not clear yet. For immigration purposes, it may be better to get married, if that is possible. It may take some time to get clarity on what will happen with civil unions state by state, and USCIS may need to clarify further as well.
4. What about fiance(e)s? They have to intend to marry within 90 days of entry in K-1 status. In the fiance(e) process, it would require proving plans to marry in a state that allows same-sex marriage.
5. What marriage date controls? For example, gay marriages started in Massachussettes in 2011. But, if DOMA is repealed in 2013, what date of marriage controls for immigration purposes? Theoretically, it should be 2011, the law of the place where the marriage occurred. This is important for determining the date of conditional residence (whether one will get a two-year green card or the permanent one), and establishment of a step-child relationship, where the marriage must take place before age 18 in order for a step-child to immigrate.
6. How soon should a petition be filed after the Supreme Court’s decision? The next day, or the date USCIS says it will start taking them? Stay tuned for announcements on that, in part because it depends upon what the final order is.
7. Marriages and civil unions while in removal proceedings always have heightened scrutiny, even for heterosexual couples. How will the bona fides be proved? (See below.)
8. What about widows and widowers? One has to have been legally married to a US citizen prior to the death of that spouse in order to self-petition. This is an area begging for some advocacy and change for couples who lived in marital union but for DOMA.
9. What if a couple marries in a third country but the foreign national is from a country that doesn’t permit it, or it is difficult to live in the home country as married where the relationship has been hidden from relatives, friends or society? How will the bona fides of the relationship be proven to a consular officer?
10. Proving marriage bona fides is just as critical for LGBT couples as it is for heterosexual couples. The couple has the burden of proof. For new marriages less than two years old, the foreign national will get a two-year green card. 90 days before the two years expires, the couple must refile and show the marriage is still good. Marriage bona fides come up in other contexts as well: cancellation of removal, derivative status for kids, waivers, and in employment based immigration. There can be problems with adequate documentation if from states or countries where couples lived under the radar, could not sign joint leases or have joint accounts, etc. What if they previously misrepresented their status on visa and immigration applications? Would that be fraud and now a waiver is required?
11. What about previously filed and denied petitions? Should petitioner’s file motions to reopen? With or without fee, given the constitutional nature of the DOMA cases? File now? File anyway to preserve the issue? Wait and file a new petition?
12. Unmarried children who are the beneficiaries of their parents’ petitions and are waiting in the quota system could lose their place in line if they marry, which puts them into a different category. (This is the same problem heterosexual couples face.) An analysis has to be done of the relevant country and category backlogs. Speaking of quotas, spouses of green card holders must wait out the quota. To stay in the US lawfully, the foreign national will need a valid underlying nonimmigrant visa. While Congress is proposing that spouses of green card holders be taken out of the quota system, until that becomes law, the quotas are in effect now.
13. Dual-national couples (both from a foreign country) will need to decide whether each of their immigration options are better by being married or not so that they can separately qualify for their own visa categories. They will face the same issues of nonimmigrant intent for tourist, student and other statuses if they try to come to the US together.
14. Here are some really interesting questions: What if you can’t marry? For example, you are ordered deported and as a condition before deportation, you cannot leave the state, and that state does not permit gay marriage. Can you get the consent of the deportation officer to go to a state to marry? What about asylees who left their partners behind in the foreign country (where maybe the ground of asylum was based on persecution on account of sexual orientation)? The asylee can’t go back to marry because then there is no longer a bona fide fear of return to support the asylum claim. But, can the partner “follow to join” or get humanitarian parole?
If LGBT families obtain parity in immigration law, there are many things to think about and decisions to make that are similar to those issues faced by heterosexual families. For example, if the foreign national entered without inspection, the question is whether that spouse can proceed to complete immigration in the US or must go to a US consulate abroad. Will a waiver for unlawful presence be required, and if so, can the person file beforehand through the provisional I601A waiver process? Is the individual subject to any other grounds of inadmissibility or removability such that the provisional waiver process would not apply, and does the person’s history warrant a favorable exercise of discretion of the waiver? Other issues to consider are whether immigration court proceedings are pending, whether a person has been ordered deported already, was deported, or received “expedited removal” at the border. Whether remedial measures or relief from removal are available would depend upon the basis for removal and the rest of the equities and eligibility for relief in the case. Would the person be eligible for DACA instead, or some other exercise of prosecutorial discretion to prevent removal?
Just like heterosexual couples, a foreign national cannot use a tourist visa to come to the US and stay to marry, or it will be deemed fraud or “preconceived intent” (otherwise known as INA 214(b)). The same analysis about the appropriate visa category is required. What if S. 744, the comprehensive immigration bill pending in the Senate, becomes law? What new options in the bill would be feasible?
At this Seattle immigration law firm, just as we do for heterosexual couples, we always look for other possibilities, such as “needle in a haystack” possibilities for derivative or automatic citizenship (e.g., based on military service or status of the ancestors); school, work and investor visa options; the diversity visa lottery; other family member sponsorships, and specialized programs for citizens of certain countries.
All of these questions are just the tip of the iceberg. Therefore, it is important to have a full consultation and analysis with a competent immigration attorney or authorized professional. For information on who is authorized to help you submit paperwork to the agencies, see the Executive Office for Immigration Review and USCIS rules on representation before the agencies.