With the passage of DOMA, I’ve had the chance to speak with quite a number of same sex couples who are disoriented when it comes to figuring out immigration processing. There is the excitement of finally having validation and official sanction of the relationship, but then the realization in many cases that the immigration process itself is rather daunting.
Same sex couples quickly come to realize it’s not so easy for immigrants either. There is a great policy battle surrounding immigrants and same sex couples alike. There are the problems of being in the U.S. illegally, meaning either entering the U.S. illegally or perhaps overstaying on a valid visa. Also, there is the problem of working without authorization. Work in the U.S. is considered an immigration benefit. For example, anyone who applies for a job claiming to be a U.S. citizen is very possibly permanently barred from the U.S. without the possibility of obtaining a green card based on marriage to a U.S. citizen. This applies regardless of whether or not a couple is of the same sex.
The pages in my website are devoted to family immigration: U.S. citizens or green card holders who marry foreign fiancés in or out of the U.S. and then want to obtain visas or green cards for family members. Same sex couples should read the pages on my site no differently than would heterosexual couples, but with some notables.
For same sex couples there is the problem of demonstrating a valid marriage. The USCIS has left this aspect of immigration open to further development. The essential problem is that only some States in the U.S. and some countries abroad recognize same sex marriage. DOMA itself sought to exclude the possibility of allowing same sex marriage by excluding it from the definition of marriage. Certainly, some States in the U.S. and some countries abroad have provisions similar to DOMA while in other jurisdictions there simply is no provision allowing same sex marriage.
In my work over the course of many years, I’ve helped couples navigate the U.S. immigration rules as to marriages and divorces. In general, marriage is according to the laws of the place where the marriage occurs. If, for example, same sex marriage is lawful in Thailand, then a U.S. citizen and a Philippines fiancé should be able to marry in Thailand and have it be a valid marriage for U.S. immigration purposes even though the Philippines does not allow same sex marriage. In this situation, it should still be possible for the foreigner to return to the Philippines after a marriage in Thailand and immigrate to the U.S. on a CR spouse visa through the U.S. consulate in Manila.
A separate concern is the State in which the U.S. citizen resides. Will the U.S. government allow a foreign spouse in the Philippines to immigrate to the U.S. and reside in Texas where same sex marriage is currently not permitted? Ultimately, I think the answer should be, yes, in accordance with Federal Equal Protection guarantees, but this remains to be seen. Certainly, if the foreigner was immigrating to a State that allows same sex marriage, such as California or New York, then there should not be a problem immigrating a foreign spouse from the Philippines to either of those two States. Immigrating to States that do not allow same sex marriage is more problematic, but I think doable.
Let’s break things down a bit to help with the analysis. I have a case where the foreigner came from Brazil to the U.S. on a B2 visitor visa years ago and overstayed. The couple married in New York which allows same sex marriage. Now, the couple moves to Georgia where same sex marriage is not allowed. Are they still married? The answer should be yes, because Georgia must respect the laws of other States, a concept called “comity”. Once the couple is married in New York, relocation to another State within the U.S. should not interfere with that marriage. The legal concept of comity is buttressed by principles of Equal Protection and Due Process embedded in the U.S. Federal as well as State constitutions. States have the right to define marriage. New York defined it to include same sex marriage, so the marriage is valid wherever the couple travels. Now, when the couple moves to another State, the couple should remain married and should be able to obtain a green card based on that marriage. Any attempt to interfere with that marriage would likely be struck by Federal rules. I will seek to apply to put the foreigner back into status as a permanent resident green card holder based on marriage.
The original example of a marriage in Thailand and immigrating to Texas has an added complication because the foreigner remains outside the U.S. during case processing, outside the purview of the US Constitution. The US citizen petitioner residing in Texas would need to press rights. However, Texas does not allow same sex marriage and so the U.S. citizen may have difficulty pressing rights since the Federal government no longer has the power to decide who is married and who is not married. The States have that jurisdiction and Texas does not allow it. The couple married outside the U.S. so there is no need for Texas to respect the laws of another State. The U.S. citizen will need to rely on Equal Protection principles to argue the Federal Government should recognize a lawful marriage in Thailand and allow immigration of the foreign spouse on a CR spouse visa. I think this is a winning argument.
Immigrating a Foreign Fiancé
Finally, there is the question of immigrating a foreign fiancé on a K1 fiancé visa for the purpose of marrying in the U.S. If the U.S. citizen resides in a State that does not allow same sex marriage, there may be some resistance from the immigration agencies who naturally look for problems and reasons to deny. Immigration officers are not paid to be supportive. In this situation, it will be important to show plans to marry in a State in the US that does allow for same sex marriage and also does not require residency status in that State in order for a marriage to take place there.
It’s important for same sex couples to discuss immigration with a qualified immigration attorney before proceedings. You want to set up your case by choosing a path of least resistance. Also, you need to be aware of the potential pitfalls before you start so that a sensible immigration plan is put forward. So many couples plow ahead with immigration, only later to find out they made a critical error that cannot be undone. Certainly, some cases will go on appeal, so you want to position your case to succeed and know the chances of success throughout case processing.
You are welcome to contact me if you like to discuss further.