On Friday, June 26, 2015, the U.S. Supreme Court ruled in the case Obergefell v. Hodges that same-sex marriage is now legal nationwide. The below article was written prior to the issuance of this decision and will be updated accordingly to reflect the current state of the law.
Like many areas of law, immigration is dynamic. U.S. Citizenship and Immigration Services (USCIS) monitors relevant case law and makes changes to immigration policy accordingly. Same-sex couples have made significant legal strides in the past decade, and these victories are reflected in current USCIS policy. It is crucial that anyone with immigration issues who is in a same-sex relationship finds an attorney who understands how LGBT (lesbian, gay, bisexual, and transgender) immigrants and their partners are affected by new regulations and procedures.
A Brief History of Immigration Law for LGBT People
LGBT foreign nationals were considered excludable from the U.S. on medical grounds until 1991. This was due to the historical classification of homosexuality as a mental illness. The psychological and medical fields evolved and changed their stance, and public acceptance of homosexuality as a normal human variation has followed. From the mid-1990s, individual states began allowing same-sex marriage or alternatives like domestic partnerships or civil unions.
Until recently, same-sex couples were unable to utilize their marital relationship as the basis for applying for immigration benefits, even if they were married abroad or in a state where the marriage was legal. Under the 1996 Defense of Marriage Act (DOMA), the federal government was prohibited from recognizing same-sex marriages for federal programs like Social Security benefits or income taxes. This prevented USCIS from considering a same-sex spouse as an immediate family member for immigration purposes. Similarly, any immigration benefit that would normally be derivatively available to the spouse or children of a nonimmigrant or an immigrant visa applicant was withheld from same-sex couples. Immigration benefits were also denied for the step-children of same-sex partners.
This all changed on June 26, 2013, when the Supreme Court decided the seminal case of Windsor v. U.S. The Court declared Section 3 of DOMA unconstitutional, signaling the federal government to begin recognizing same-sex marriages for federal purposes. Within weeks, both USCIS and the Board of Immigration Appeals (BIA), where numerous immigration cases had been held in abeyance pending the outcome of this case, began implementing this holding as it related to immigration law.
Valid, Same-Sex Marriages and Potential Benefits
Now, most immigration benefits that would be available to a heterosexual married couple are offered to same-sex couples, with some very important caveats. Perhaps the most important factor is whether the marriage is one that will be considered valid for immigration purposes. This decision is based on the place of celebration, or where the actual marriage takes place. If the couple is married in a state or country that offers legal recognition of the marriage, it will be honored for immigration purposes. The couple need not reside in the state where the marriage occurred. That is, if a woman from Ohio marries a foreign national woman in New York (where same-sex marriages are allowed), the marriage will still be honored for immigration purposes, even though it is not actually a valid marriage in Ohio.
Couples who were “married” in a state that offers only domestic partnerships or civil unions are not considered married for the purposes of immigration benefits. It is crucial that the jurisdiction in which the marriage takes place confers the full benefit and title of marriage.
Honoring valid same-sex marriages allows many options for gay U.S. citizens (USCs) or legal permanent residents (LPRs) and their foreign national partners. They can now petition for family-based immigration benefits like fiancé Visas and LPR status for their spouses. Work-based Visa applications can now include same-sex spouses. Foreign nationals who are in removal proceedings can defend their removal by applying to adjust status based on marriage to a same-sex spouse. And generally, most benefits available derivatively to spouses and their children are offered to the same-sex couples. The children of foreign national spouses can be included on derivative petitions so long as the marriage takes place before the children turn eighteen. As with all couples, the children must also be under age twenty-one and unmarried.
What should a couple do if the foreign national lives in a country that is hostile to same-sex marriage? Fortunately, there are several options, even if the couple wishes to marry abroad. For one thing the marriage can take place in any country that allows same-sex marriages, even if it is not the home country of the foreign national. This may make travel for the spouse’s family easier than a trip to the U.S. Alternatively if the couple wishes to bring the fiancé to the U.S. for marriage, but fears a hostile Visa interview in the home country, the couple can ask the State Department to change the venue to another location.
Transgender people also have unique rules guiding decisions about their marriages. The marriage will be considered valid if 1) the gender was legally changed before the marriage; and 2) the marriage is legal in the place of celebration. Of course, if the jurisdiction of the wedding honors all marriages, it does not matter what the legal gender of the partners were at the time of marriage.
Those previously in a heterosexual marriage who subsequently sought an immigration benefit based on that marriage but later entered into a same-sex marriage, seeking an immigration benefit based on the same-sex marriage, may run the risk of being seen as having committed marriage fraud in the eyes of the government. This is especially the case for couples whose conditional resident status terminated following a divorce in a heterosexual marriage and who then later seek to obtain permanent residence based on marriage to a same-sex spouse. The fact that the law previously did not recognize same-sex marriages might not be a proper excuse in these situations.
Same-sex married couples are now afforded the same basic immigration benefits as heterosexual couples. However, these benefits are only conferred when the proper procedures are followed, and when the marriage takes place in a jurisdiction that affords full marriage status to same-sex couples. Immigration law for LGBT people is extremely intricate, with nuances that are difficult to navigate without the help. Please consider consulting an experienced immigration attorney if you are facing any of these issues.