When it comes to U.S. immigration matters, same-sex married couples are to be treated exactly the same as opposite-sex married couples. This was not the case prior to June 2013, when the U.S. Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional.
Following the Court’s ruling in United States v. Windsor, USCIS and U.S. Consulates made it clear that lesbian, gay, bisexual and transgender (LGBT) immigrants may obtain green cards and immigrant visas based on same-sex marriages to U.S. citizens or permanent residents. Nevertheless, same-sex married couples still face unique challenges in the immigration process.
1. The marriage must occur in a U.S. state or in a foreign country where same-sex marriage is legal
In Windsor, the Supreme Court overturned section 3 of DOMA, which defined the word “marriage” as “a legal union between one man and one woman as husband and wife,” and the word “spouse” as “a person of the opposite sex who is a husband or a wife.”
To date, since the Windsor ruling, 37 states plus Washington D.C. have fully legalized same-sex marriages. In January 2015, the Supreme Court granted review of cases from four states – Kentucky, Michigan, Ohio and Tennessee – on the question of whether the U.S. Constitution gives same-sex couples the right to marry no matter where they live or whether states may limit marriage to a union only between a man and a woman. The Court is set to hear oral argument on this issue in late April. [UPDATE: On June 26, 2015, in a 5-4 decision, the Court ruled that same-sex marriage is a Constitutional right.]
Challenges arise when LGBT couples live in a state or country that does not recognize same-sex marriages, but are unable to travel to a place where such marriages are legal. The reasons include financial constraints, disability or illness, and difficulties obtaining the proper visa to travel to a country where same-sex marriage is legal.
Furthermore, some non-citizens are detained in immigration detention centers while they are in removal proceedings or are awaiting to be removed from the United States. If the LGBT non-citizen is detained in a state that bans same-sex marriage, (s)he might not be allowed to travel to a nearby state, in which same-sex marriage is legal, to get married to a U.S. citizen or permanent resident.
USCIS follows the “place of celebration” instead of the “place of residence” rule. This means the same-sex marriage counts for U.S. immigration purposes as long as it is valid in the state or country where it occurred (except in certain situations, such as polygamous marriages).
In general, you may still apply for immigration benefits if you married in a place that recognizes same-sex marriage, even if you live in a place that does not. If you are in a state or country that does not recognize same-sex marriages, it is essential that you exhaust all means to travel to and get married in a place that does.
2. Prior marriage to opposite-sex spouse could raise red flags
Like opposite-sex couples, same-sex couples must prove their marriage is bona fide, i.e. entered into with the intent of establishing a life together as spouses, and not solely to or primarily to obtain immigration benefits.
Prior marriages to persons of the opposite sex could cause USCIS or a U.S. Consulate to question whether a same-sex marriage is bona fide.
Prior marriages must be disclosed in green card and immigrant visa applications. Additional scrutiny is expected when the U.S. citizen or permanent resident filed an immigrant petition for a prior spouse. If the previous immigrant petition was denied or if marriage fraud was found in the prior case, it is especially important to consult an attorney before you file a new immigrant petition.
The USCIS or consular officer might also have concerns of marriage fraud if the same-sex marriage occurred shortly after termination of the opposite-sex marriage. It helps to collect evidence showing that the prior marriage was bona fide, in the event the officer has concerns about it.
If the prior opposite-sex marriage involved no immigrant petitions (because both parties are U.S. citizens, for example), the officer might still question the true nature of the same-sex marriage. It helps to provide legitimate reasons for the prior opposite-sex marriage, such as being bisexual, not identifying as LGBT at the time of the prior marriage, giving in to societal pressure to “change” one’s sexual orientation, or satisfying parents’ expectations.
3. Individual USCIS and consular officers might hold hidden biases against LGBT couples
USCIS officers receive sensitivity training on LGBT and post-DOMA issues. They are directed to treat immigrant petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. USCIS approved the first immigrant petition filed by a U.S. citizen for his same-sex spouse on June 28, 2013, just two days after the Supreme Court’s ruling.
USCIS and consular officers are generally fair and reasonable. Nonetheless, individual officers can hold preconceived opinions about same-sex marriages that might affect their decisions. While the immigrant petition must be approved if the parties prove their marriage is bona fide, the issuance of a green card or immigrant visa is discretionary.
Same-sex marriages have led to routine grants of green cards and immigrant visas since 2013, but are still relatively new territory for USCIS and consular officers. There is no guarantee that the examiners will review the evidence presented by same-sex couples with the same standard they apply to opposite-sex couples.
A good solution is to have an attorney appear with you at the USCIS interview or prepare a legal brief to the U.S. Consulate outlining the applicable policies and laws.
4. Same-sex couples often lack objective evidence of a bona fide marriage
While support for legalization of same-sex marriages is on the rise, some families, communities, cultures and countries still object to them. To date, several U.S. states continue to ban same-sex marriages. The lack of equal protection can create complications in immigrant petitions for same-sex spouses.
Affidavits from third parties, including relatives, friends and religious leaders, having personal knowledge of the bona fide nature of the marriage are key evidence in immigrant petitions. USCIS and consular officers can also inquire on whether family members or friends know about the marriage or attended the marital ceremony. A same-sex couple who is not supported by family, friends or religious leaders might not be able to present such favorable evidence.
USCIS or U.S. Consulate investigators can also visit the couple’s claimed residence to verify whether they live together. During the site visit, the investigators may talk to neighbors, apartment building managers and landlords to determine whether they are aware of the marriage.
Some same-sex couples might not openly disclose their sexual orientation or reveal themselves as married, especially if they live in a place where same-sex relationship is banned or stigmatized. Worries about housing discrimination can also lead to the lack of a joint residential lease. These factors often make it harder to prove they live together and share a real marriage.
In certain states that ban same-sex marriage, the couple’s tax filing status for state income tax purposes must be listed as “single.” There are also situations where the couple chooses not to file joint federal tax returns with the IRS, even though they may.
Some jurisdictions might not allow same-sex spouses to receive life insurance or health care benefits. Concerns about employment discrimination might also cause the same-sex couples to refrain from applying for certain benefits even when they are eligible. This include signing up for employer-sponsored spousal healthcare and listing the spouse as a beneficiary of an employer-provided retirement plan or life insurance policy.
Residential, financial, employment and other records that show status as “single” or fail to include the spouse do not support the claim of a genuine same-sex relationship.
When same-sex couples hide their relationship or do not openly hold themselves out as married, for whatever reasons, they often lack objective evidence of a bona fide union.
To make up for the shortage of traditional, objective documents, same-sex couples (like opposite-sex couples) may provide a detailed, written affidavit describing their relationship history, joint residence, and marital life. They can also submit more readily available evidence such as:
- correspondences addressed to each spouse at the same address
- statements from each other’s bank accounts showing withdrawals to pay rent or other shared expenses
- affidavits from friends and relatives who support their marriage;
- cards, letters and emails they have exchanged with each other
- photographs of the two of them together on vacations and at events celebrating holidays and special occasions
- hotel receipts, car rental invoices and travel itineraries showing trips they have taken together
- evidence of shared membership at clubs that allow same-sex couple benefits
Ultimately, same-sex couples must prove their marriage is valid and bona fide just like opposite-sex couples. They should do five things to get their marriage-based green card or immigrant visa application approved: enter into a real marriage, establish a life together, present documentation of a bona fide marriage, prepare for the green card or immigrant visa interview, and consult an attorney.
Until same-sex marriage becomes universally accepted and legal within all of the United States and around the world, many LGBT immigrants will continue to face unique challenges in the immigration process.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
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Photo by: Sam T
Technology competence should definitely be a concern for Minnesota lawyers, now that the Court has amended the Minnesota Rules of Professional Conduct, effective April 1.
Every year on April 1, USCIS begins accepting H-1B cap petitions from U.S. employers. Congress sets an annual limit on the number of new H-1B visa petitions that can be approved each year. During the last several years, the regular cap of 65,000 visas and master’s cap of 20,000 visas has been reached in the first week of April.
The Court order states, “The petition asked the court to approve the proposed rule amendments and acknowledge the proposed amendments to the comments.” The order notes that the petition “is granted as to the proposed rule amendments,” but adds, “The comments to the rules are included for convenience and do not reflect court approval or adoption.”
In 13 States Have Adopted the Ethical Duty of Technology Competence, Robert Ambrogi pointed out the Minnesota order is confusing. It’s not clear whether the Court actually approved Comment 8 to Rule 1.1, which states that lawyers should keep abreast of the “benefits and risks associated with relevant technology” in law practice.
It’s also not clear how the amended comment affects the disciplinary process for lawyers. Brian Tannebaum, bar defense attorney and author of The Practice: Brutal Truths About Lawyers and Lawyering, noted: