Many have advocated either the repeal of the Defense of Marriage Act or the enactment of some federal legislation which would allow for same sex immigration benefits notwithstanding DOMA. A recent example of the latter is the Uniting American Families Act (UAFA) which would provide US Immigration benefits to “permanent partners” of US Citizens and Lawful Permanent Residents. Most efforts to provide same sex immigration benefits have been in vain which has created frustration in the LGBT community as well as amongst advocates for civil rights.

In recent months there has been talk of repealing the “Don’t Ask Don’t Tell” policy in the US military. Also, the US State Department has issued internal rules granting Immigration benefits, in the form of diplomatic and official passports, to the same sex partners of State Department employees working abroad. Many feel that these are “half measures,” simply designed to placate advocates for LGBT rights.  The following, quoted from this source, sums up the feeling of consternation:

Noticeably absent from this civil rights agenda is the repeal of the Defense of Marriage Act. Apparently a Democratic majority in the House, a Democratic super-majority in the Senate, and a Democratic president in the White House isn’t quite enough to get a repeal passed. Of course, other major issues are confronting the nation, and issues dealing with same-sex marriage often bring with them volatile politics. But, with the prospect of trimmed Democratic majorities in Congress after the 2010 midterm elections, is it really unreasonable for the LGBT community to expect action on DOMA now, as opposed to potentially a decade from now, maybe later? [Emphasis in original]

As can be seen from the above quote, the real issue for many is the repeal of DOMA. This legislation lies at the heart of most legal restrictions placed upon same-sex couples in the United States. Currently, the legality of DOMA is also being weighed in the US Federal Courts, but the outcome is far from certain. The repeal of DOMA is likely to remain a controversial issue in the future. A repeal of these restrictions will likely mark a watershed moment for American Civil Liberties.

A further, and in my opinion more compelling, argument deals with the issues of state versus federal sovereignty. The Commonwealth of Massachusetts asserts that the United States government does not have the right to dictate to the states about what will and will not constitute marriage. By refusing to acknowledge a valid same-sex marriage legally executed in a state (in this case the Commonwealth of Massachusetts), the Federal government is refusing to provide Federal benefits to married same-sex couples, while providing benefits to married different-sex couples. This denial violates the doctrine of “states’ rights” which contends that the states, not the federal government, are endowed with the inherent right to regulate the citizenry.

Hillary Sorin wrote the following on this issue:

“Five states now legally marry same-sex couples, but these couples are denied the federal protections and programs available to married straight couples. These include income-tax credits, employment and retirement benefits, health insurance coverage, Social Security payments and immigration benefits for spouses of U.S. citizens.”

Of particular interest to readers of this blog is probably the fact that DOMA effectively precludes US Family based visas because the Federal government refuses to recognize a same sex marriage (or an intention to obtain a same sex marriage) within the United States.

If DOMA were to be repealed then it is logical to assume that those same sex bi-national couples who marry in Massachusetts (or any state where same-sex marriage is legal) would be able to obtain a Permanent Resident Visa (CR-1, IR-1) based upon that valid marriage. Further, an unmarried  same sex couple with an intention to travel to the United States for the purpose of marriage could conceivably obtain a K-1 visa if the Defense of Marriage Act was no longer Federal law.

This case will be very interesting to follow because the ramifications on Immigration law will be tremendous as the whole field of US Family Immigration will likely be opened up to those couples previously unable to obtain US Immigration benefits.

(Please note that the author has no intention that reader use this information in place of legal advice. For advice on the law, please contact a licensed attorney. No attorney-client relationship is created between the author and any reader of this article.)

The Path to Citizenship for Undocumented Aliens

Earlier this month President Barack Obama spoke with the President of Mexico about the issue of providing a path to citizenship for undocumented aliens in the United States. The call for comprehensive immigration reform has been brought up a great deal during the new President’s fledgling term. It is an issue that ignites passions on both sides of the aisle particularly in an economy environment in a state of decline. There is something to be said for the idea that an amnesty needs to be called to get undocumented aliens “out of the shadows,” even if a recession is threatening the jobs of American Citizens. The other side of the coin is the idea that illegal immigrants are exactly what their name implies: “illegal,” and should not in the end be rewarded for circumventing or outright violating Immigration regulations.

Many believe that the notion of America as a nation of immigrants and a melting pot of different cultures should compel the US government to make some sort of provision for granting some sort of legal status to currently undocumented aliens. Admittedly, this argument holds some merit particularly where the undocumented alien is working in the US and is not a burden to the state.

Family Immigration and Visas for Same Sex Couples

Concurrently with Comprehensive Immigration Reform there is another bill in the US Congress seeking to give another form of prospective Immigrants legal status in the United States that they do not currently retain. The Uniting of American Families Act (UAFA) seeks to add the term “permanent partner,” to the list of those eligible for US Family Immigration Benefits under US Immigration regulations.

Under the Defense of Marriage Act a marriage is recognized as a legal union between a man and a woman. Therefore, this act effectively bars same sex couples from receiving US federal recognition for a marriage (including in US states where same sex marriages and civil unions are legal). The upshot of this legislation is that it precludes same sex couples from obtaining US Immigration benefits if one of the partners is a foreign national.  The addition of  the new term “permanent partner,”  to the American Immigration and Nationality Act would allow same sex marriage and family visas without creating a legal conflict with the Defense of Marriage Act.

A New Category of Visa to be created under the UAFA?

Some lawyers and legal scholars have speculated as to what type of family visa a permanent partner would be entitled to. The term itself would seem to rule out the K1 visa because it is a fiancee visa and the use of the word “permanent” contradicts the idea of a fiance visa. At the same time, because the term specifically does not connote “marriage,” it would seem likely that a us marriage visa would be out of the question. Therefore, a “permanent partner” visa will likely be a separate category unto itself that is distinct from other family visa categories. It remains to be seen what the burden of proof will be for obtaining a “permanent partner” visa, but the fact that marriage will not be a legally recognized element for proving the relationship (at least with the Defense of Marriage Act on the books), it is likely that a large amount of evidence will be needed to prove up the bona fides of a permanent partnership.

Both Comprehensive Immigration Reform and the UAFA are necessary steps to dealing with the practical effect of immigration regulations that cause certain groups to “fall through the cracks,” of American Immigration law. However the debate on these issues is resolved, a modicum of uniformity and resolution of these matters is necessary.

Thanks for reading,

For more information about US Immigration please see:

US Visa Thailand

The most important aspect of this legislation is the addition of the term “permanent partner,” to current Immigration law. Under the proposed legislation proving permanent partnership would be defined as someone who:

(A) is in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment;

(B) is financially interdependent with that other individual;

(C) is not married to or in a permanent partnership with anyone other than that other individual;

(D) is unable to contract with that other individual a marriage cognizable under this Act; and

(E) is not a first, second, or third degree blood relation of that other individual.

...with liberty and justice for ALL

In my opinion, these “permanent partner” visas will require a great deal more evidence to prove a relationship than a conventional marriage visa, but at the same time it could closely resemble the K1 Fiance Visa in that, the K1 is a visa not based upon a marriage but an underlying bona fide relationship between the petitioner and the beneficiary.  After the sweeping election of Democrats in November there is a better chance than ever that this legislation will pass, but in order to get this through it may still require pressure being brought to bear on local Congressmen and Senators. So if this is an issue for you or someone you know, then call your local representative and tell them to vote for the Uniting of American Families Act.

Should this legislation be passed it would be a major victory for the LGBT Immigration movement. For more information please visit the following sites:

Immigration Equality

UAFA on Wikipedia

LGBT Immigration Rights