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Same Sex Marriage Immigration: Reflections on Early Post-Windsor Cases

This blog post discusses my personal reflections about the impact of the fall of DOMA on same sex couples from an immigration lawyer’s perspective. I have interviewed and represented numerous same sex couples in the first quarter since the U.S. Supreme Court ruled in June 2013 that section 3 of the Defense of Marriage Act (DOMA) impermissibly violated the equal protection clause of the U.S. Constitution. In U.S. v. Windsor, the Court required the federal government to recognize same-sex marriages in over 1000 laws, including immigration provisions. Since the Windsor case was decided, the Board of Immigration Appeals, in Matter of Zeleniak, confirmed that immigration law recognizes the law of the place where the marriage takes place, allowing same-sex couples to benefit from fiance(e), marriage and derivative visas, waivers, cancellation of removal, and other spouse-based benefits in immigration law. In addition, USCIS has added more FAQs on the subject, and the American Immigration Council, in cooperation with Immigration Equality, has issued a practice advisory for lawyers. Literally, within minutes of the Court’s decision, our office was inundated with calls. From this Seattle immigration lawyer’s perspective, it has been the most interesting time in my law practice in decades. For the first time in ages, it is very rewarding that a new benefit is available that can help a lot of people. And it fosters keeping families together. Below, I divide my observations into several themes about the kinds of issues same sex couples are facing.

Each of the many couples with whom I have spoken with have very different fact patterns. Therefore, it is impossible to describe trends in very broad strokes. However, that reinforces my long standing opinion that couples should seek quality legal advice before filing applications, whether they do it themselves or with counsel. Why? Because every case is different and demands a customized strategy, since there is no one-size-fits-all solution for everyone. Couples are often surprised to learn that just because immigration law now recognizes same sex marriage if legal in the jurisdiction where it took place, it does not guarantee that the path to a green card and citizenship will be easy, fast, recommended or available at all. Well, welcome to the real world of immigration law! Now same-sex couples get to face the same issues, complications, and bureaucracy that heterosexual couples have always experienced. Our laws are complex, procedures are often slow, mind-boggling, and/or frustrating. Below, I break down the broad themes I’ve seen by whether couples are living abroad together, living bi-nationally, or living in the U.S. together. The focus of this blog post is on marriage and fiance(e) visas between U.S. citizens and foreign nationals. In upcoming posts, I will address foreign nationals married to permanent residents, and dual foreign nationals needing principal or derivative nonimmigrant or permanent visas.

Couples Living Abroad

1. Can the couple marry where they are?

If not, we are looking at the K-1 fiance(e) visa alternative, or ability to travel to third countries with marriage equality laws that preferably do not have residency requirements to marry. Immigration Equality has a good website FAQ on U.S. states and foreign countries that permit same sex marriage, Where Can We Marry? If going to a third country, can the couple get visas to go there to marry or to reside long enough to meet residency and consular jurisdiction requirements, if any? We are also looking at alternative visa options (work visas, other family sponsorships, or other programs). In some very narrow situations, some couples with stable jobs or businesses abroad may come to the US and marry, and then leave the US to complete consular processing. This requires very careful planning to assure that there will not be any false representations made to the border agents.

2. Are there children involved?

It is very important to evaluate whether a couple will immigrate with children because of age-out issues. To immigrate as a child of a US citizen or with the spouse of a US citizen, the child must be under 21 and unmarried. This will entail evaluating whether children can qualify as step-children if the marriage takes place before they are 18, or if they are older, using the fiance(e) category instead to preserve their age to 21. In the latter case, the children would immigrate as derivatives (K-2) of the principal fiance(e) K-1. Fiance(e) visas are more involved and costly because once the fiance(e) arrives in the U.S., the couple must marry within 90 days and then proceed to file a green card application based on that marriage. I expect that as time goes on, we will see more complicated family law issues depending upon how the couple’s children joined the family. In addition, there may be issues involving the Child Status Protection Act to preserve age, among others issues such as adoptions, surrogate children and more.

3. Is the U.S. citizen “domiciled” in the U.S.?

For affidavit of support purposes, required for marriage based cases, the U.S. citizen must be willing and able to take “concrete steps” to resume domicile in the U.S. on or before the foreign national’s immigration to the U.S. Surprisingly, there are many U.S. citizens living “in exile” abroad because until the WIndsor case, there was no U.S. spousal immigration option for living with a same sex spouse in the U.S. if the foreign national could not get a visa. Thus, many U.S. citizens have built lives for themselves abroad, including running businesses overseas.

4. Will U.S. embassy staff have received sensitivity training by the time of the visa interview?

Depending upon the country, it is important to consider the timing for applying for an immigrant or K-1 visa in relation to when the U.S. State Department conducts staff training on sensitivity and confidentiality issues. In some countries, applying for a visa based on a same sex marriage/engagement could be very, very dangerous given the religious or political climate and nationality of consular post workers that tend to be local hires. This means training the guard at the door, the guards in the waiting room, and the interviewing officer, not to mention the civil surgeons in the area that must conduct medical exams. Client safety is paramount in these situations, and timing could be everything. The American Immigration Lawyers Association (AILA) was to have had a liaison meeting with the State Department on this issue, but that was cancelled due to the government shutdown. Stay tuned on this issue.

5. Does the foreign national spouse have a checkered immigration history requiring a waiver?

Unfortunately, some foreign national spouses made earlier “mistakes” concerning their US immigration, such as overstaying a visa by more than six months, making false statements on visa or immigration applications, committing crimes, or having prior deportations. In these situations, just being able to process a spouse-based immigration case is not the end of the story. They may require waivers of inadmissibility and/or applications for permission to reapply after deportation. These additional applications are complicated, time consuming, expensive, and can further delay green card processing. Some waivers require proof of extreme hardship to the US citizen or green card holding spouse or other relatives, and by living abroad with the foreign national, the qualifying relative may or may not have experienced hardship. Of course, these are very fact specific cases that require an in-depth analysis of the likelihood of success for a waiver taking into account among many factors, local country conditions.

Couples Living Bi-Nationally (One in the US and one abroad)

1. Can the foreign spouse qualify for a visa to come to the U.S. in order to marry and stay permanently?

Foreign nationals living abroad are understandably anxious to come to the U.S. and get married here if their U.S. citizen partner is in the U.S. We are frequently asked about using tourist visas. Unfortunately, this is a risky option due to the fact that the tourist visa (or visa waiver) is not to be used for the purpose of coming to the U.S. to stay permanently, get married and apply for a green card. In fact, the applicant has to show a home abroad that has not and will not be abandoned. Now that there is this new marriage benefit, it is understandably frustrating to learn that immigrating to the US as a fiance(e) or spouse takes way too long. On average (note the word “average”), (without needing a waiver) it can take about 9-12 months from date of filing a visa petition to getting visa in hand. Using the tourist visa (or visa waiver) to avoid that delay can be very tempting. It can result in a finding of fraud or misrepresentation, which is a ground of inadmissibility to deny a green card. In that case, a waiver of inadmissibility would be required. Alternatively, a consular officer or border agent could deny a visa or admission due to “214(b)”, also known as “preconceived intent.” (On the 214(b) link, scroll down to the seventh and tenth items.) Even if the person is admitted, if the officer deciding the adjustment of status case (application for a green card within the US) finds preconceived intent, despite a legitimate marriage, the officer must exercise discretion about whether to grant a green card.

It would be a shame to finally have the opportunity to immigrate through a spouse, and then ruin that opportunity by being removed at the border (or possibly detained in a detention center first and then removed), or having a green card denied because of the misuse of the tourist visa or due to a false statements about intent made to a consular or border officer. The issue can come up at the U.S. consulate when applying for a tourist visa, at the border when seeking admission, and at the green card interview when the officer reviews the person’s entire immigration history and actions. Of course, there may be other bona fide reasons to come to the U.S. as a tourist that can be proven such as to attend a trade show or conference, a board of directors meeting, activities for an employer based abroad, etc. Again, these matters are always very fact specific and cannot be viewed as one-size-fits-all.

Patience is a virtue. And patience is needed here in order to benefit from the U.S. Supreme Court decision. These rules have always applied to opposite sex partners and spouses. We have seen clients with an existing history of visa denials. Why get another one for a tourist visa application? Why not just start the process of fiance(e) or marriage based cases from the start if that is the true intention? They take approximately the same amount of time from date of filing the underlying visa petition to visa in hand to come to the U.S. The journey will be long, but the benefit will be great in the end if done properly.

A lot of our clients tend to be professionals or business owners, so consular processing of fiance(e) or immigrant visas works within their plans to slowly wind down their jobs, business, and family affairs abroad. If the couple can marry in the US or abroad, a marriage based immigrant visa can be less expensive and time consuming in the long run over the fiance(e) process. In our practice, we listen to our prospective clients’ priorities about work, family, need to travel, budget, religious or family custom issues, and other factors in coming up with a strategic plan tailored for each client.

2. What about other visa options?

In my law practice, I always look at investor and work visa options, immigration through other family members, and various other immigration programs to see whether there is a faster visa option than fiance(e) or marriage cases, or visas that allow for “dual intent,” i.e., both the intent to come temporarily and permanently. We also look to see whether the foreign national may actually be a U.S. citizen and not know it. This is why we always do an in-depth one-hour or longer consultation to learn all the facts and history of the couple.

3. Has the foreign national ever been to the U.S.?

A lot of people are quick to assume that getting a green card is the best thing for the foreign national. If the foreign spouse/fiance(e) has never been to the U.S., one of the benefits of a fiance(e) visa is that the couple has 90 days to check each other out. If the relationship doesn’t work out, then there is no need to proceed further and the foreign national must return home. There is none of the aggravation of having to get divorced from a relationship that wouldn’t have worked out. Likewise, it’s not always easy for people to live in the U.S., even for many Americans. Living in the US may turn out to be much more difficult than the foreign national imagined. Again, either a fiance(e) visa or perhaps a work visa may help the couple to “buy time” in order to determine if this is the place and relationship for them. While time in the U.S. on a tourist or student visa may address the issue, the single biggest reason they are denied is because the applicant fails to show ties to the home country and a bona fide intent to return home.

Couples Already Living Together in the U.S.

1. When did the foreign spouse/fiance(e) come to the U.S. and in what status?

Timing and facts are everything when determining whether it is appropriate to marry and/or file for adjustment of status without leaving the U.S. We have seen a lot of people who arrived in the U.S. before the Windsor case was decided in June. Some arrived many years ago as students or on H-1B visas; others arrived a few weeks or months before the decision. Every case has to be evaluated on its particular facts, but for the most part, it will be important to argue that the law fundamentally changed after admission. Indeed, WIndsor constitutionally changed the range of benefits available to LGBT couples who could not have known prior to their admission before the decision.

The case will be different for people who arrived in the U.S. after Windsor was decided. In that case, we expect to see more problems with preconceived intent or fraud. See the discussion above about the risks involved.

2. What about foreign spouses/fiance(es) who are not in legal status?

Foreign nationals already in the U.S. must have their immigration history evaluated to determine whether the person is in legal status or not, and if not, whether the person can “adjust status” to permanent residence here in the U.S. or will require consular processing abroad for an “immigrant visa” or K-1 fiance(e) visa. To adjust status, one must have been “inspected and admitted” or “paroled.” Both of these terms are terms of art and there are some less obvious ways of showing both. If one must consular process abroad, it is important to determine whether leaving the U.S. will trigger the three or ten-year bars to return based on “unlawful presence,” and whether a waiver of inadmissibility will be required. There could be other grounds of removability or inadmissiblity as well. Therefore, various filing strategies have to be considered. These are all case-by-case and very fact specific issues.

The most common issue we have seen involves foreign nationals previously married to opposite sex spouses. We must determine if it was a fraud marriage or one in good faith, because the issue may come up in the next application. Other common issues are whether the person was “admitted” or “paroled,” required for adjustment applicants, and whether the person has a criminal or prior deportation history. For people who entered without inspection, we need to determine if any of the exceptions apply that would allow the person to adjust status instead of consular processing an immigrant visa.

We have also seen a string of cases involving misrepresentation (and perjury) about status on I-9 forms at work, on applications for tuition, or other government permits, and use of fake social security numbers, etc. These are all serious issues that may result in a recommendation NOT to file for immigration benefits, at least at this stage, especially if there was a false claim to U.S. citizenship made, because there are no waivers available at all. Some people, because of a poor immigration history are unable to immigrate at all given current laws. There are some potential fixes and new immigration categories in the Senate bill S. 744 that passed the same week as DOMA’s section 3 demise. It is now up to the House of Representatives to come up with a bill, so we’ll have to wait and see over the next few months if those people who currently should not apply may ultimately get some relief later in the year.

3. What about training of USCIS officers?

Word among the immigration lawyer community is that adjustment interviews for the most part have gone very well in terms of officer treatment toward same sex couples, although here and there attorneys have experienced some ignorance on certain legal issues. At a recent local USCIS meeting, the director in this area stated that they had not yet received any kind of formal sensitivity training, but that everyone is following the law.

Other Common Issues

Now that bi-national and dual-national same-sex couples are part of the U.S. immigration system, welcome to the real world. Same-sex couples and opposite sex couples can face the following problems that can affect future immigration status:

1. Lengthy Processing Times for Immigrant Visas and K-1 Fiance(e) Visas at U.S. Consulates Abroad

As noted above, it can take on average about 9-12 months from date of filing a visa petition to visa issuance in hand – and that’s just an average without complications, meaning some cases can be shorter and others can take longer. For example, we recently had a K-1 petition approved in only two months. In addition, USCIS is now reporting on its website longer delays for marriage based petitions while at the same time announcing it is farming out those petitions to offices with smaller workloads. Unfortunately, as a general matter, fiance(s) and spouse based processing times are on average a lot more time consuming than most people believe. That explains why so many people want to jump the gun to get here by any means and then apply for adjustment of status that only takes a few months. Again, patience is a virtue if you want your case to go smoothly with the least amount of problems. At least there are new benefits to be had for same-sex couples that were previously not available, and applicants must be grateful for the opportunity as well as being patient instead of creating a string of immigration violations.

2. Criminal activity by the foreign national can bar eligibility or make the case more difficult, time consuming and expensive.

There are several grounds of inadmissabilty based on crimes, and each case involves review of all court records and documents. The person may or may not be inadmissible, and if inadmissible, may need a waiver if one is available. One must be admissible to get a green card or visa. For those foreign spouses already here, we also have to look to see if the person is deportable/removable based on a crime.

3. Criminal activity by the U.S. citizen may make the case more difficult, time consuming and expensive.

The Adam Walsh Act prohibits certain U.S. citizen or green card holding sponsors from sponsoring relatives if they have been convicted of certain crimes against minors. Adam Walsh waivers are very difficult to get and require specialized legal advice. Further, domestic violence and other violent offenses can cause delays in the adjudication of petitions or visas for fiance(es), as they must be notified by the government about the American’s history and be given the opportunity to decide whether to proceed with the visa process.

4. Affidavit of support issues can cause delays.

As mentioned above, for affidavit of support purposes, U.S. citizens living abroad will have to resume domicile at some point in the process on or before the foreign national’s immigration. Careful planning is required. Further, the U.S. citizen may not meet the income or asset guidelines. In that case, a household member or a co-sponsor will be required to file and be bound by an affidavit of support, or else the case should be delayed until the petitioner’s finances improve.

5. Individuals with communicable diseases or mental health problems need their cases carefully evaluated for eligibility and potential for waivers.

Although HIV is no longer a ground of inadmissibility, the cost of medication could be prohibitively expensive thus triggering a finding of public charge inadmissibility. The government will look at how the medications are being paid for and by whom, and whether the foreign national will have health insurance. The same public charge issue applies to other communicable diseases and treatment. There are also issues around mental health, alcohol and drug use. Indeed, there is no waiver at all for persons determined to be alcohol or drug “abusers.”

6. Prior heterosexual marriages can create eligibility issues, delays or expense.

This was discussed above in part. On the one hand, people shouldn’t have to explain themselves as to why they were once in a heterosexual relationship and are now in a same sex one. On the other hand, to avoid an appearance of fraud though, it may be beneficial to provide an explanation. Furthermore, a finding of a prior marriage fraud, in other words, a marriage entered into solely to evade the immigration laws, can be a permanent bar to future immigration. These are all very fact-specific situations and should be reviewed carefully with an experienced immigration attorney.

7. Have all prior marriages been lawfully terminated?

On the one hand, this sounds like an obvious requirement. But often it is a much more complicated issue. In some countries, it is very difficult to get a divorce. And in other countries, it is impossible, such as in the Philippines. There could be local, tribal or religious customs that are not recognized by US immigration law. Or, it could simply be a matter that the couple no longer lives in the jurisdiction where the marriage took place so that travel or bureaucracy to get the divorce can create delays. In the US, the Windsor case left open issues surrounding state recognition of same sex marriages by non-marriage equality states, as well as the fact that many states have residency requirements to get divorced.

8. Is the marriage or fiance(e) relationship bona fide or is it solely for immigration purposes?

Of course, it goes without saying that all couples have the burden of proving the bona fides of their relationship. Most of the same sex couples we have interviewed in the last quarter have known each other for years and years. But for people who have just met, we have to be extra cautious to make sure the marriage is not or will not be a scam. We recommend that couples refrain from filing until they have sufficient evidence of the bona fides of their relationship. It is not very pleasant to be interviewed separately by fraud investigators or to have them show up at your house in the middle of the night.

9. Do you really need a green card/permanent residence?

Couples usually come to our office asking for a green card. But maybe a green card or permanent residence is not what is really needed. This may be especially true for people who travel a lot for extended periods of time, or they may have extensive home, family or business interests abroad. Especially for people of means with substantial property or assets abroad, I recommend that they get tax and estate planning advice first and that we then regroup to figure out if permanent residence makes the most sense for immigration, tax, travel, business, and family needs, among others. We will work closely with your tax and estates advisors.

The last few months have been especially rewarding being able to help couples and families who previously had few or no options for lawful immigration to the USA. We look forward to getting through upcoming government green card interviews in the next few weeks and coming months so that our clients can have green cards in hand.