After DOMA: Immigration

7/28/2019 After DOMA: Immigration

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Tis series of fact sheets produced together by:

American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & DefendersHuman Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN

IMMIGRATIONTese FAQs address some o the questions we anticipate LGB amilies with immigrationissues will have ollowing a Supreme Court decision striking down the De ense o Marria

Act (DOMA). For general in ormation about U.S. immigration law and how it a ects LGBindividuals and their amilies, see the Immigration Equality website,immigrationequalityorg . Immigration is a complicated area o law, with many actors to consider speci c to eacindividual. Consult with a quali ed immigration attorney about your speci c situation.

Immigration attorneys told me in the past not to marry my partner becausethis will ruin my chances o getting a visa. Now that DOMA has been struckdown, should I seek advice about whether this may have changed?

For those seeking permanent resident status in the United States, yes, that advice machange now. A reason attorneys have advised oreign partners o U.S. citizens not to maris that or many o the most common types o non-immigrant visas, such as tourist visa(B1/B2) and student visas (F1), the oreign national entering the U.S. must demonstrate tothe U.S. immigration ofcial that he or she does not have the intent to remain in the U.S.permanently. Since there now is a legal means to apply or permanent immigrant status i

the U.S. based on a marital relationship, in many cases it will make sense to go ahead anmarry and le or permanent bene ts.

Now that DOMA has been held unconstitutional, i I marry my partner can Isponsor her or a green card?

In many cases, yes. Options or amilies will vary rom case to case, based upon a numbo actors, including: whether the partners are living together or in di erent countries

whether the partners are living together in the United States or abroad; whether the partnehave married; whether the partners can marry; and or amilies together in the UniteStates, whether the non-U.S. citizen partner arrived here a ter having been inspected by aimmigration ofcer or whether the partner entered without inspection. Same-sex couples

will also have to meet the general criteria or marriage-based immigration. For genein ormation about the procedure to apply or marriage-based immigration petitions on

behal o oreign spouses who are inside the U.S., see Immigration Equalitysadjustmeno status page (immigrationequality.org/issues/transgender/adjustment-o -status-proceduralsteps/), and or oreign spouses who are outside the U.S., see Immigration Equalityconsular processing page (immigrationequality.org/issues/transgender/consular-processinprocedural-steps/).

Te ollowing outlines some common circumstances or same-sex binational couples.

The Supreme Court victory in United States v. Windsor striking down the discriminatory ederal De ense o Marriage Act (DOMA) a frms that allloving and committed couples who are married deserve equal legal respect and treatment rom the ederal government. The demise o DOMAmarks a turning point in how the United States government treats the relationships o married same-sex couples or ederal programs that are linkedto being married. At the same time, a turning point is part o a longer journey, not the end o the road. There is much work ahead be ore same-sexcouples living across the nation can enjoy all the same protections as their di erent-sex counterparts.

Keep in Mind: Te Supreme Courts ruling in Windsor applies only to the ederal

government. It does not change discriminatory state laws excluding same-sex couples rom state-con erred marriage rights.

Te ruling striking down DOMA will not be e ective until 25 days

rom the decision. Even when e ective, ederal agencieslargebureaucraciesmay need and take some time to change orms,implement procedures, train personnel, and efciently incorporatesame-sex couples into the spousal-based system.

Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses willreceive ederal marital-based protections nationwide. For ederalprograms that assess marital status based on the law o a state thatdoes not respect marriages o same-sex couples, those state laws

will likely pose obstacles or legally married couples and surviving spouses in accessing ederal protections and responsibilities.

Securing air access to ederal protections that come with marriageor all same-sex couples in the nation will take some time and work.In some situations, it may require Congressional action or ormalrule-making by agencies.

Be ore making a decision, it is essential that you consult an attorney or individualized legal advice. Tis is particularly important orpeople who are on certain public bene ts, as getting married may

jeopardize your eligibility without providing you the ull measureo protections other married couples enjoy. In addition, couples

who travel to another place to marry and then return to live in a state that does not respect their marriage may be un airly unableto obtain a divorce, which can lead to serious negative legal andnancial consequences. People must make care ul decisions whenand where to marry, even as we work together to end this injustice.

We are committed to winning universal access to ederal maritalprotections or married same-sex couples through ongoing publicpolicy advocacy, and, where necessary, strategic litigation. Contactour organizations i you have questions, or updates and to learnmore about what you can do to achieve ull equality or those whoare LGB .

Tis Guidance is intended to provide general in ormation regarding major areas o ederal marriage-based rights and protections based onhow the various ederal agencies have administered ederal bene ts.It should not be construed as legal advice or a legal opinion on any specifc acts or circumstances, and does not create an attorney-client relationship . Past practice is no guarantee o uture developments.

While laws and legal procedure are subject to requent change anddi ering interpretations in the ordinary course, this is even more truenow as the ederal government dismantles DOMA and extends ederalprotections to same-sex couples. None o the organizations publishing this in ormation can ensure the in ormation is current or be responsibleor any use to which it is put.

No tax advice is intended, and nothing therein should be used, andcannot be used, or the purpose o avoiding penalties under the InternalRevenue Code.

Contact a quali ed attorney in your state or legal advice about yourparticular situation.
http://immigrationequality.org/http://immigrationequality.org/http://immigrationequality.org/issues/transgender/adjustment-of-status-procedural-steps/http://immigrationequality.org/issues/transgender/adjustment-of-status-procedural-steps/http://immigrationequality.org/issues/transgender/adjustment-of-status-procedural-steps/http://immigrationequality.org/issues/transgender/adjustment-of-status-procedural-steps/http://immigrationequality.org/issues/transgender/consular-processing-procedural-steps/http://immigrationequality.org/issues/transgender/consular-processing-procedural-steps/http://immigrationequality.org/issues/transgender/consular-processing-procedural-steps/http://immigrationequality.org/issues/transgender/consular-processing-procedural-steps/http://immigrationequality.org/issues/transgender/consular-processing-procedural-steps/http://immigrationequality.org/issues/transgender/consular-processing-procedural-steps/http://immigrationequality.org/issues/transgender/adjustment-of-status-procedural-steps/http://immigrationequality.org/issues/transgender/adjustment-of-status-procedural-steps/http://immigrationequality.org/issues/transgender/adjustment-of-status-procedural-steps/http://immigrationequality.org/issues/transgender/adjustment-of-status-procedural-steps/http://immigrationequality.org/http://immigrationequality.org/


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AFTER DOMA: WHAT IT MEANS FOR YOU IMMIGRATION 2



WE ARE BOTH IN THE UNITED STATES

My spouse and I married in a marriage equality state and livein a state that recognizes our marriage. Can I fle or her?

Yes, your application should be treated exactly as the application o a di erent-sex couple.

My spouse and I married in a marriage equality state but livein a state that does not recognize our marriage. Can I still fleor him?

U.S. Citizenship and Immigration Services (USCIS) ocuses on the place where the marriage was entered (the place o celebration), not the place where one spouse or both spouses live. As long as the marriage was validly entered into under the laws o the state or country o celebration, it shouldnot matter where you currently reside.

I my partner and I entered into a civil union ( or examplein New Jersey) or a Domestic Partnership ( or example inCali ornia) with all the rights o marriage, but are not actuallymarried, can I sponsor her or a green card?

Te answer to this is not entirely clear, and we hope to have guidance on thissoon. I it is possible or you and your partner to marry even i you have totravel to a di erent state to do so, you may be better o marrying becauseyou could then eel more secure in ling right away without having to waitor urther guidance.

OTHER CONSIDERATIONS:

FOR IMMIGRANTS WHO ARE IN LAWFULIMMIGRATION STATUS

I am in the U.S. legally on a non-immigrant visa that allows meto have the intention to stay in the U.S. ( or example an H1B orL1 visa). I am married to my spouse; can she fle a green card

application or me? Yes, as long as the two o you are law ully married, and you meet the othergeneral immigration marriage requirements, you should be able to apply toadjust status to law ul permanent resident and process your paperwork rom

within the U.S. Seeimmigrationequality.org/issues/transgender/adjustment-o -status-procedural-steps/

I am in the United States on a non-immigrant visa ( or examplea tourist or student visa) that required me to demonstratethat I did not have the intent to immigrate to the U.S. Is ita problem or me to marry my partner and have her fle amarriage-based green card application?

Maybe. As with many areas o immigration law, this is an area that willinvolve a act-intensive inquiry by the USCIS. It is considered acceptableto enter the U.S. with the intention to remain here temporarily and thenhave your intent change as circumstances in your li e change. For example,a university student might meet someone a ter attending school here anddecide to marry that person months or years a ter entering the U.S. on a student visa. On the other hand, i a person enters the U.S. on a touristvisa, marries, and applies or a green card within three weeks o entering theU.S., USCIS may conclude that the individual misrepresented her lack o immigrant intent to the immigration ofcial at the airport and this could

lead to a denial o the application. Tis is the law or di erent-sex couples,and we expect it will apply identically to same-sex couples.

FOR IMMIGRANTS WHO ARE OUT OF STATUS

I entered the U.S. with a visa several years ago and neverle t. Can my U.S. citizen spouse fle a green card applicationor me even though I am now here without legal status?

Yes. While the general rule under U.S. immigration law is that you cannochange your status rom unlaw ul to law ul rom within the United Statesone very important exception to that rule is or spouses o U.S. citizen

As long as you entered the U.S. with inspection by a U.S. immigratioofcer, you can still le or a green card (adjust status) rom within theU.S. even i you are currently here without law ul status.

I entered the U.S. without a visa and without inspection, bycrossing the Mexican border. Can my spouse sponsor me ora green card?

Its complicated. You cannot le or a green card rom within the UnitedStates i you entered without inspection. (Tere is an exception to this

rule or people who had an immigration petition or labor certi cationled on their behal on or be ore April 30 2001.) Tat means you willhave to return to your home country to apply or a green card throughconsular processing. However, when you leave the U.S. to apply, y

will probably be prohibited rom returning because o the three yearten year bar on returning to the U.S. ollowing the accrual o unlaw upresence immigrationequality.org/issues/immigration-basics/moscommon-questions/#unlaw ul-presenceundocumented-immigrants here

You may be able to le or a provisional waiver immigrationequalityorg/issues/transgender/the-provisional-unlaw ul-presence-waiver/o thisbar rom within the U.S. and wait here or the waiver to be approvedbe ore you leave the U.S. to use consular processing. Tis is a complicateapplication, and you will need to consult with an immigration attorney.

I AM IN THE UNITED STATES BUT MY PARTNER IS ABROAD

My spouse and I are legally married. I live in the UnitedStates but my spouse currently lives abroad because shehad no way to get a green card here. What do we do now?

Te two o you can le a marriage-based green card application. Sinceshe is currently outside the United States, the application will bprocessed through the U.S. consulate in her country (consular processingimmigrationequality.org/issues/transgender/consular-processingprocedural-steps/, meaning that the U.S. consular sta will interview hethere, rather than in the U.S. I her application is approved and she enterthe U.S., she should be able to do so as a law ul permanent resident.

I live in the United States in a marriage equality state andmy partner currently lives abroad because he had no way toget a green card here. We are not married, and same-sex couples are unable to marry in my partners home country.

What should we do now?

You have several options and should consult with an immigration attorneabout them. One possible option is or you to le a anc visa petition orhim. American citizens can le a anc/e visa immigrationequality.org/issues/transgender/ ancee-visas-procedural-steps/ petition or a partner
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overseas with whom he or she has a committed relationship. Te couplemust marry within 90 days o the oreign partners entry into the UnitedStates. Once married, the American citizen spouse can le a marriage-based petition For the oreign spouse.

I your partner is able to travel to the United States as a tourist, anotherpossibility would be or him to come to the U.S. as a tourist, marry, andthen return to his home country and go through consular processing there. Di erent consulates have di erent backlogs in di erent categories;consult with an immigration attorney to decide which option would beastest and most appropriate.

I live in the United States in a marriage equality state and mypartner lives abroad in a country where same-sex couplesare unable to marry. He has never been able to get a visato the United States, and we are not married. What do I donow?

As with the previous answer, you should be able to le a anc visa petition or him. Since he cannot travel to the United States another

way, this may be your only option to bring h im to the U.S. You may alsobe able to marry in a third country that has marriage equality i you andyour partner can travel to another marriage equality country. He thencould apply or law ul permanent residence through consular processing.

I live in a state that does not have marriage equality, and mypartner lives abroad in a country where same-sex couplesare unable to marry. She has never been able to get a visato the United States, and we are not married. What do I donow?

As with the previous answer, you should be able to le a ance visa petition or her. However, since the state in which you reside would notallow a same-sex couple to celebrate a marriage, you would have to submitevidence with your ance petition that indicates you plan to marry ina marriage equality state. Tis is the approach that USCIS has taken

www.immigrationequa lity.org/wp-content /up loads/2012/04/USCIC-guidance- ransgender_FINAL.pd or anc/e visas where one spouse istransgender, which is another area o marriage law where di erent stateshave di erent rules. Another option is that you may be able to marry ina third country that has marriage equality i you and your partner cantravel to another marriage equality country and then she could apply orlaw ul permanent residence through consular processing.

MY PARTNER AND I ARE IN EXILE LIVING TOGETHEROUTSIDE OF THE UNITED STATES

Since my spouse was not able to fnd a permanentimmigration solution in the U.S., we relocated abroad,

where we have lived or many years. What do we need todo now to relocate to the U.S.?o le a marriage-based green card application, the U.S. citizen spousegenerally must reside, or submit proo o an intention to reside, in theU.S. I the U.S. citizen spouse lives abroad, part o the application packetshould be a letter describing his or her intent to establish a residence inthe U.S.

Since my spouse was not able to fnd a permanent immigrationsolution in the U.S., we have been living abroad or many years.

We are not yet ready to move back to the U.S., but I want to do what I can to establish his right to live there. Can I fle or myspouse rom abroad i we dont intend to live in the U.S.?

No, once an individual applies or law ul permanent residence in the U.She or she must actually live here. In act, a green card holder who movabroad or an extended period o time can lose his or her right to return to theU.S. You should wait until you are ready to actually live in the U.S. to le aapplication or law ul permanent residence.

OTHER ISSUES

I am the oreign national spouse o a U.S. citizen and am HIV-positive. Can my spouse still sponsor me or a green card?

Yes. Te U.S. ban on immigration or people with HIV/AIDS ended in January 2010. When you take the medical examination as part o the greecard application process you will not be tested or HIV. However, the doctocan ask questions about your overall health and medications you are taking, anyou should answer honestly. USCIS can take your health into consideration one actor in determining whether you are likely to become a public charge

that is, likely to need public assistance or social security disability bene tSimply being HIV-positive, however, is not a reason to deny an application olaw ul permanent residence, especially i you have a work history.

My oreign national spouse has a child who was born abroad.Can I also fle a green card application or her child when I fleor my spouse?

You should be able to. Under current law, a U.S. citizen can petition or thminor children o a oreign spouse once a step-parent/step-child relationshihas been ormed.

I am a law ul permanent resident o the U.S. I have a greencard, but I am not a citizen. Can I sponsor my oreign nationalspouse or a green card?

Law ul permanent residents can sponsor a spouse or immigration bene tsbut under current U.S. law as it applies to all married couples, your spou

would not quali y as an immediate relative, but rather would all under th amily pre erence system www.travel.state.gov/visa/bulletin/bulletin_5953html in category F2A. Tat means that rather than ling the application oran immigrant visa (I-130) and the application or law ul permanent residenc(I-485) simultaneously, you would rst have to le the I-130, and then wait orthe visa to be current. Presently, there is about a two year wait be ore she woube able to apply or permanent residence. However, i you become a citize

while she is in line to le or permanent residence, she could immediately leor the green card once you are naturalized.

Individuals who all under the amily pre erence system and wish to apply tadjust status rom within the U.S. must be in law ul status and must not haveaccrued any unlaw ul presence here. Tis is di erent than the rule or spouseso U.S. citizens, who can apply to adjust status even i they are here unlaw ullas long as they entered with inspection.

Also, unlike U.S. citizens, law ul permanent residents cannot sponsor a anc/or a anc/e visa, though it may be possible to marry in a third country and gothrough consular processing or a green card a ter the marriage.
http://www.immigrationequality.org/wp-content/uploads/2012/04/USCIC-guidance-Transgender_FINAL.pdfhttp://www.immigrationequality.org/wp-content/uploads/2012/04/USCIC-guidance-Transgender_FINAL.pdfhttp://www.immigrationequality.org/wp-content/uploads/2012/04/USCIC-guidance-Transgender_FINAL.pdfhttp://www.travel.state.gov/visa/bulletin/bulletin_5953.htmlhttp://www.travel.state.gov/visa/bulletin/bulletin_5953.htmlhttp://www.travel.state.gov/visa/bulletin/bulletin_5953.htmlhttp://www.travel.state.gov/visa/bulletin/bulletin_5953.htmlhttp://www.travel.state.gov/visa/bulletin/bulletin_5953.htmlhttp://www.travel.state.gov/visa/bulletin/bulletin_5953.htmlhttp://www.immigrationequality.org/wp-content/uploads/2012/04/USCIC-guidance-Transgender_FINAL.pdfhttp://www.immigrationequality.org/wp-content/uploads/2012/04/USCIC-guidance-Transgender_FINAL.pdfhttp://www.immigrationequality.org/wp-content/uploads/2012/04/USCIC-guidance-Transgender_FINAL.pdf


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How soon a ter I get residence can I apply to become aU.S. citizen?

While the general rule is that an individual must be a law ul permanentresident or ve years be ore applying to become a citizen, spouses o U.S.citizens can apply three years a ter obtaining their green card, provided they remain married and living together as a couple.

WILL THINGS WE SAID OR DID IN THE PAST AFFECT OURFUTURE APPLICATION?

I have been in the U.S. or three years on a student visa. I live with my partner and he provides fnancial support or me, butI have always indicated on my immigration papers that he is a amily riend. Will the act that I never disclosed that hesmy partner be ore make it harder or him to sponsor me or agreen card now?

Te answer to this may depend on the speci c acts o your case. We areadvocating that USCIS take a air and reasonable approach to issues such asthis, given the systemic discrimination that LGB amilies have aced underU.S. law. I you have any ear that USCIS could nd raud in your case, youshould consult with an immigration attorney be ore ling your application.

INFORMATION FOR DUAL FOREIGN NATIONAL COUPLES

My spouse and I are both citizens o a oreign country. I havebeen o ered a skilled worker visa ( or example an H-1B) to

work in the U.S. Can my spouse come with me while Im inthe U.S.?

Yes, she will quali y or an H-4 derivative visa, which means your spouse canaccompany you or the duration o your visa. However, as with di erent-sex spouses, your spouse will not be entitled to work while in the U.S.

Where can I get more in ormation?

Te Immigration Equality website immigrationequality.org/ has a great dealo general in ormation on U.S. immigration law and its application to LGBpeople. I the website does not answer your question, you may submit an inquiry immigrationequality.org/contact-us/ online to the ImmigrationEquality legal sta . You can also consult with the legal organizations below.

FOR MORE INFORMATION, CONTACTIMMIGRATION EQUALITY

immigrationequality.org

NATIONAL CENTER FOR LESBIAN RIGHTSnclrights.org

AMERICAN CIVIL LIBERTIES UNIONaclu.org/lgbt

GAY & LESBIAN ADVOCATES & DEFENDERSglad.org

LAMBDA LEGALlambdalegal.org
http://immigrationequality.org/http://immigrationequality.org/http://immigrationequality.org/contact-us/http://immigrationequality.org/contact-us/http://immigrationequality.org/contact-us/http://www.immigrationequality.org/http://www.aclu.org/lgbthttp://www.glad.org/http://www.lambdalegal.org/http://www.lambdalegal.org/http://www.glad.org/http://www.aclu.org/http://www.aclu.org/lgbthttp://www.immigrationequality.org/http://immigrationequality.org/contact-us/http://immigrationequality.org/contact-us/http://immigrationequality.org/contact-us/http://immigrationequality.org/http://immigrationequality.org/

After DOMA: Immigration

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Transcript of After DOMA: Immigration