Integrity Legal

Posts Tagged ‘LGBT US Visa’

31st July 2010

In recent postings on this blog this author has discussed the Defense of Marriage Act (DOMA) and the ongoing US Court proceedings that are aimed at overturning this legislation in order to accord same-sex bi-national couples with privileges equal to their different-sex counterparts. Recently, a Court in Massachusetts found that the provisions of DOMA run contrary to the United States Constitution. As a result, this decision could greatly modify the framework by which Immigration petitions are adjudicated. Apparently, the Court wishes to delay radical modification of US Immigration law and procedure until such time as all issues can be addressed in an appellate proceeding. It would appear that many same-sex bi-national couples are waiting with baited breathe to see the practical implications of the recent Court decision overturning certain aspects of DOMA. However, there is some delay as the Immigration Equality blog explains.  To quote directly from the Immigration Equality blog as of July 27, 2010:

Many of you have had questions about the status of the DOMA case. Just like you, we are waiting for the court to issue an order which should be happening any day now. Once the order is issued, there will be an automatic 14 day stay. We are almost certain that during that 14 day period, the government will file an appeal and we are almost certain that the stay will remain in effect during the course of the appeal. But we will keep you updated as soon as we learn of any further developments.

Those reading this post are probably curious about the practical ramifications of the “stay” of this decision. The “stay” means that the current mechanism for adjudicating US Immigration petitions will remain in place, at least for now. Therefore, those Americans and Lawful Permanent Residents with a same sex loved one living abroad will still be unable to petition and apply for same sex family visa benefits pursuant to the provisions of DOMA. Many feel, and this author concurs, that the American appellate courts, including the United States Supreme Court, are likely to find DOMA unconstitutional pursuant to American legal doctrines such as “Full Faith and Credit” and “States’ Rights“. However, as the issue remains unresolved it is unwise for anyone to make any irrevocable decisions regarding US LGBT Immigration until a final judgment is handed down without reservation.

It should be noted that judicial intervention is not the only method available for those wishing to see same sex visa benefits accorded in the same manner for those in a same sex marriage or relationship as those in a different sex marriage or relationship. The Uniting American Families Act (UAFA) would provide a statutory framework whereby same sex “permanent partners” could be granted the same Immigration benefits as those in a different-sex marriage or relationship. Although UAFA-like legislation has seen unfailing support from legislators such as Jerry Nadler, many feel that the issue of LGBT Immigration rights will ultimately be adjudicated by the US Courts.

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2nd May 2010

The issue of Comprehensive Immigration Reform seems to be more hotly debated as the mid-term Congressional elections in the United States approach. Recently, President Barack Obama was quoted as saying:

What has become increasingly clear is that we can no longer wait to fix our broken immigration system, which Democrats and Republicans alike agree doesn’t work. It’s unacceptable to have 11 million people in the United States who are living here illegally and outside of the system. I have repeatedly said that there are some essential components that must be in immigration legislation. It must call for stronger border security measures, tougher penalties for employers who hire illegal immigrants and clearer rules for controlling future immigration. And it must require those who are here illegally to get right with the law, pay penalties and taxes, learn English, pass criminal background checks and admit responsibility before they are allowed to get in line and eventually earn citizenship. The outline presented today includes many of these elements. The next critical step is to iron out the details of a bill. We welcome that discussion, and my Administration will play an active role in engaging partners on both sides of the aisle to work toward a bipartisan solution that is based on the fundamental concept of accountability that the American people expect and deserve.

Many argue that the United States Immigration system needs to be modified as it is proving to be too inflexible when it comes to dealing with some of the important immigration problems of the day. A case in point is the debate on Same Sex US Immigration benefits for bi-national couples. At present, same-sex bi-national couples cannot receive the same family immigration benefits as different sex couples due to provisions in the Defense of Marriage Act (DOMA). In short these couples cannot receive a same sex marriage visa. Many hope that by placing specific legislative language akin to the provisions of the Uniting American Families Act (UAFA) into the Comprehensive Immigration bill this policy of providing disproportionate benefits will come to an end.

Overall, the current immigration system has improved for those seeking immediate relative immigration benefits (IR1, CR1, IR2, etc). For example, the  National Visa Center has begun administratively closing K3 Visa applications as the need for such expedited travel documents is felt to be no longer necessary for those seeking immigrant benefits since USCIS no longer has a high backlog for such petitions. The K1 visa is still processing in the same manner as it has in the past. However, some of the preference petition categories are still processing quite slowly. Also, this brief assessment does not look at employment based immigration issues associated with visa categories such as the L1 visa and the E2 visa nor does it begin to tackle to issue of undocumented workers and immigrants in the USA.

For further information on this issue please see: Fiance Visa Thailand.

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11th November 2009

There are many people throughout the United States who seem more and more unhappy with the current state of gay rights issues. This unhappiness seems particularly acute when discussing the issue of DOMA (the Defense of Marriage Act). Under current United States Federal law same sex marriages are not recognized by the Federal Government. Therefore, United States Immigration benefits based upon marriage cannot be extended to the same-sex partners of US citizens as same sex marriage is not recognized as a “marriage” for purposes of US Immigration.

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.


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24th March 2009

The Uniting of American Families Act (UAFA) is a bill currently in Congress that would amend the US Immigration and Nationality Act in an effort to end discrimination against gay, lesbian, bisexual, and the trans-gendered US Immigration legislation by allowing “permanent partners” of US Citizens and permanent residents to obtain lawful permanent resident status in the same way as conventional spouses of American citizens and lawful permanent residents and to penalize immigration fraud related to non-bona fide “permanent partnerships.”

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

...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

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