Articles Posted in Gay, LGBT, Same Sex Marriage, Bi-National Dual National families, DOMA

Published on:

March 31, 2014 is the deadline to reopen I-130 visa petitions that were denied by USCIS prior to the US Supreme Court’s ruling in the United States v. Windsor case in June 2013. Specifically, the petition must have been denied based on Section 3 of the Defense of Marriage Act (DOMA) that the US Supreme Court held to be unconstitutional. Many of these cases were reopened by USCIS on its own. But, if you haven’t heard directly from them already, it is important to make contact with the agency either directly or through your attorney before March 31, 2014.

USCIS states the following in its FAQs.

Q5. My Form I-130, or other petition or application, was previously denied solely because of DOMA. What should I do?

Published on:

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.
Continue reading

Published on:

The US State Department has announced the start of registration for the DV-2015 Visa Lottery program. Visas will be available for processing between October 1, 2014 through September 30, 2015. This means that all selected applicants must receive their visas no later than September 30, 2015. This Diversity Visa Lottery allocates up to 50,000 visas to individuals and their dependents from countries with low immigration rates to the US. The registration process will begin October 1, 2013 at noon EST and will end on November 2, 2013 at noon EST. Registration is done electronically (“E-DV”) at www.dvlottery.state.gov. (Note, if you go online to this site prior to October 1, 2013, you will only see information for the most recent lottery already held for DV-2014, not the upcoming DV-2015 mentioned above.) If rejected in the lottery, applicants will not be notified. However, applicants can begin checking status to see if selected beginning May 1, 2014 by logging onto the site above. Selected winners of the lottery will be notified by the US State Department via email.

Ineligible Countries And Exceptions

For DV-2015, applicants must have been be born in any country EXCEPT the following countries: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, the Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Korea, the United Kingdom (excluding Northern Ireland) and its dependent territories, and Vietnam. (Nigeria is newly added to the exceptions list from years past). Hong Kong, Macau, and Taiwan remain eligible.

Published on:

Today, USCIS announced two FAQs on implementation of immigration procedures for same sex marriage couples. The first one is pretty basic in that I130 visa petitions can be filed now for spouses of US citizens and green card holders. The second FAQ is rather wishy washy about cases where couples are lawfully married in a state that authorizes same sex marriages but where the couple lives in a state that does not recognize such marriages. There, USCIS says that petitions can still be filed but that there could be some exceptions, none of which are defined. I understand from Immigration Equality that they have asked USCIS to clarify their position. Generally, US immigration law honors the law of the place where a marriage takes place or is celebrated. Stay tuned for further clarifications.

I know that I keep harping on this in every post, but understand that just because a couple can marry, marriage alone does not convert a person to lawful status. In addition, a marriage does not guarantee that the person is otherwise eligible to immigrate temporarily or permanently. Nor is a marriage case necessarily the most expedient method of immigration to the US compared to some other visa categories. And, finally, pursuing a green card, known as permanent residence, means an intent to take up residence and living in the US on a permanent basis. Therefore, green cards may not be the best goal if there is no intent to spend most of the time in the USA. By contrast, pursuing a green card can also conflict with the required intent to live permanently abroad if using the Visa Waiver program (WT/WB), tourist, student and some other visas requiring nonimmigrant intent. Making false statements on a visa application or to a border or consular officer can create many problems down the road. A careful evaluation of your case with an experienced immigration attorney is highly recommended.

Published on:

I’m on my way to the American Immigration Lawyers Association Conference in San Francisco and just read that the US Supreme Court in Hollingsworth v. Perry nixed section 3 of DOMA as well as Prop 8 in the Windsor case (at least as to standing to be in court). I’ll be going through the decisions over the next few days. Already, our phones are ringing off the hook with couples who have been waiting for this historic moment for years. More to follow, as I’m sure there will be several gatherings at the conference to mull over the myriad of legal issues sure to follow. The main message, though, is that just as for heterosexual couples, just being able to lawfully marry is NOT a guarantee of ability to lawfully immigrate. And neither decision means that every state in the US must recognize same-sex marriage. There are many issues to consider and careful planning and a thorough analysis for each couple is a must. Our Seattle based immigration law firm handles these types of cases. Stay tuned and check out the firm Facebook page for additional updates as well as ImmigrationEquality.org.

Published on:

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.
Continue reading

Published on:

During the coming week, we could see two historic events: announcement by the US Supreme Court on the constitutionality of the Defense of Marriage Act (DOMA), and a Senate floor vote on S. 744, the comprehensive immigration reform bill. Both are likely to occur while this Seattle immigration lawyer and thousands of my fellow immigration lawyers from around the country will be convening at the annual American Immigration Lawyers Association (AILA) conference in San Francisco. (Something big always happens during AILA conferences. Last year, President Obama announced “DACA”, Deferred Action for Childhood Arrivals for the DREAM Act youth [as in the DREAM Act that has never been passed by Congress to date, but features of which are included in S. 744.] The year before, it was the administration’s Prosecutorial Discretion initiative. And the year before that, President Obama gave his lackluster speech on his plans to tackle immigration reform). In any event, this week, it’s a race to see who will make history, if any: how will the Supreme Court rule on DOMA and whether the Senate will allow voting on Senator Patrick Leahy’s amendment to permit equal treatment of same-sex couples under immigration law, among many other features of the Senate bill.

On June 11, 2013, Senator Leahy (D-Vt) introduced Amendment 1182, also known as the Uniting American Families Act, during which time many other amendments were introduced. However, amendment 1182 was “ordered to lie on the table,” which means it is not debatable but could come up for a vote at a later time, no doubt, after the Supreme Court decision, if it rules that DOMA is unconstitutional. If the Supreme Court does not act in favor of LGBT families, in theory, the Congress could pass a bill or an amendment to this bill to create a specific right for same-sex couples to gain immigration benefits. However, this is very unlikely in the context of S. 744, given the make up of the House and and the other features of the bill that need to pass, and because the conservative wing of the GOP would be “vindicated” by the Court if it issues a negative reaffirming DOMA.

Meanwhile, on June 20, Senator Leahy introduced a Manager’s Amendment to get the most non-controversial amendments moving in the Senate in the next few days. Previously, when S. 744 was before the Senate Judiciary Committee, Senator Leahy withdrew his amendment in order to save the overall bill from what would have been certain demise by the GOP conservatives who felt LGBT equality would kill the bill. Taking much heat from that move, Senator Leahy re-introduced his amendment again on the Senate floor, no doubt to preserve his legacy on the issue and just in case the Supreme Court gives DOMA its demise. The full Senate is scheduled to vote on the S. 744 after debate on the amendments, supposedly by the end of this week. Then it will face a nasty battle in the House, if the House can even come up with its own comprehensive bill over the summer. Right now, the House is working on piece meal legislation instead, most of which deals with enforcement.

Published on:

Today’s Seattle Times has an article, Gay-Rights Movement’s New Focus: Immigrants, discussing how gay rights groups and local immigrant rights groups are working together to fight for immigration reform. Gay rights’ groups have advocated for a solution to the problem facing undocumented people in the US, many of whom are LGBT members. At the same time, many immigrant rights groups support reform of the immigration laws to allow US citizens and green card holders to sponsor their gay spouses. All of that may be decided soon when the US Supreme Court rules on a couple of important cases about the constitutionality of the Defense of Marriage Act (DOMA), the primary bar standing in the way of bi- and dual national couples being able to immigrate legally to the US.

Meanwhile, conservative factions of Congress oppose fixing the immigration benefit options for LGBT immigrants. Some see expanding immigration options to bi-national and dual national gay families as a deal breaker to passing a bill on Comprehensive Immigration Reform, while supporters of same-sex couples’ rights, including Maine Republican Senator, Susan Collins, advocate that any CIR bill must have avenues for lawful immigration for these immigrants. See an earlier post on this blog, Getting Married in Washington State: What Binational and Dual National Same-Sex Couples Need to Know about the current options for same-sex couples under the existing system, and how DOMA’s demise could substantially change things for these families. The Obama Administration recently filed a brief in support of gay marriage in the California Proposition 8 case, Hollingsworth v. Perry. Oral argument in that case is scheduled for March 26, 2013. Oral argument in the other case, Windsor v. US, is scheduled for the next day. The Supreme Court’s rulings on these two cases by June will end up affecting what Congress can do concerning the immigration rights of the LGBT community. Stay tuned.

Published on:

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.
Continue reading

Published on:

Washington State appears poised in the next few days to be the seventh state in the nation to legalize same-sex marriage. It would go into effect on June 7, 2012. Assuming expected legal and referendum challenges fail, what would that mean for immigrant couples?

Visas and Green Cards for Binational Couples

Unfortunately, it will still be impossible to obtain a green card or permanent residence through sponsorship by a gay or lesbian US citizen or permanent resident spouse until Congress repeals the Defense Against Marriage Act (DOMA). DOMA prohibits the federal government from recognizing same-sex marriage for the purpose of marriage-based green cards. Because who can immigrate in what category is statutory, the Obama administration is not in a position to deviate from the existing spouse sponsorship statute even though his administration is not defending DOMA in some litigation. Such an important change to the marriage based immigration statute requires an act of Congress, and this Congress is not likely to repeal DOMA.

Visas for Dual Foreign National Couples

In the case where both partners in a couple are foreign nationals, for temporary visas, same-sex partners and spouses are not specifically recognized as dependents where one partner qualifies for a specific temporary business, family or student visa. Therefore, both partners have to qualify individually for their own visa types. However, there are some policy memos and provisions in the State Department’s Foreign Affairs Manual that allow certain qualifying partners to come to the U.S. with the principal visa holders. The most frequently used visa for non-principal partners or spouses is the B-1/B-2 tourist visa. However, it is limited as to length of stay and ability to work is not authorized. These and other lesser known provisions are described in an earlier blog post at “Impact of DOMA on Bi-National Couples.”

For dual foreign national couples seeking to immigrate permanently, the law presently does not allow the non-principal partner to qualify as a dependent. For example, if one partner qualifies for a business based green card, the other partner will need to qualify for his or her own green card category or may have to rely upon the restrictions of other temporary visas.

Binational Couples Where the Foreign Partner/Spouse is Out of Status
There are some avenues for relief from removal proceedings where an individual has a US citizen or permanent resident partner. They include cancellation of removal, asylum and various types of waivers of inadmissibility or deportability. None of them specifically allow consideration of the hardships to gay or lesbian US citizen or permanent resident spouses/partners. However, their hardships can come up in the exercise of discretion or possibly in relation to other citizen or green card qualifying relatives for whom hardship can be shown. Recently, there have been a few cases in which Immigration Judges have allowed consideration of the hardships to gay partners or spouses as a matter of discretion.
Continue reading