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.