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.