Integrity Legal

17th September 2013

Since the relatively recent decision from the United States Supreme Court known colloquially as the Windsor decision, there have been a few lingering questions from members of the LGBT community regarding the United States immigration options now available for same sex couples.

Due to section 3 of the Defense of Marriage Act (DOMA) in the past it was not possible for same sex married couples (even those with a valid marriage in one of those American jurisdictions permitting same sex marriage) to receive federal benefits based upon their marriages. This lack of federal recognition precluded the possibility of a United States Citizen or Lawful Permanent Resident sponsoring a foreign spouse or fiance for a US marriage visa or a US fiance visa. With the high Court’s pronouncement that same sex marriage should be accorded the same recognition as different sex marriage this all changed.

Section 3 of DOMA reads as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

From the moment the Supreme Court ruled this section unConstitutional, the Federal government was instantly required to allot the same benefits to lawfully married same sex and LGBT couples as would be allotted to different sex couples in similar circumstances. What does this mean from an immigration standpoint? LGBT and same sex couples are now permitted to petition and apply for the same types of visas as their different sex counterparts. Therefore, a couple of the same sex who is already married in the U.S. or a foreign jurisdiction recognizing such unions may now apply for a U.S. marriage visa such as the CR1 visa, the IR1 visa, or the K3 visa. Furthermore, the United States Citizenship and Immigration Service (USCIS) has made it clear that they will also adjudicate K1 Visa petitions (petitions for immigration benefits for foreign fiances of U.S. Citizens) for same sex couples in the same way that such petitions are adjudicated for different sex couples.

The Catch Section 2

One issue that has been of concern for experts studying this issue is the practical impact of the Court’s seeming unwillingness to speak to the issue of the Constitutionality of Section 2 of DOMA. Section 2 of DOMA reads as follows:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

The fact that Section 2 of DOMA has not been overturned means that same sex couples may NOT receive the same STATE benefits as their different sex counterparts depending upon the local laws of the couples’ State of residence and notwithstanding the fact that the couple may have a perfectly legal marriage in one of those U.S. jurisdictions allowing such marriages. An example of how this could work in a practical sense would be a situation where the same sex couple is married legally in one state, but resides in a state which forbids same sex unions, a spouse having state retirement benefits may not be able to fully pass on their retirement benefits to their same sex spouse. How would this work in an immigration context? USCIS and the Department of State have already issued answers to a series of frequently asked questions regarding LGBT immigration. On the question of US fiance visas, the USCIS as well as the State Department have noted that so long as the couple has a bona fide intention to celebrate their marriage in one of those states which permit such unions then the immigration petition and application will be adjudicated no differently than a similarly situation petition or application for a different-sex couple.

One issue which may be concerning for same sex partners in the Kingdom of Thailand arises from the fact that, at present, same sex marriage is not legal under Thai law and therefore authorities in Thailand will not register a marriage to two people of the same sex. That stated, there is currently legislation being drafted to allow same sex marriage in Thailand. However, as of the time of this writing it is not clear whether the Thai government will ultimately pass said legislation. As there is not another jurisdiction in the region which recognizes same sex unions, it may not be feasible for same sex partners to marry prior to submitting a US marriage visa petition. This leaves many same sex Thai-American couples in a position where their only option is to apply for a K-1 fiance visa and marry in the United States.

For related information, please see: K1 Visa Thailand.


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