Integrity Legal

Posts Tagged ‘Same Sex K1 visa’

27th January 2014

It recently came to this blogger’s attention that Vietnam has legalized same sex wedding ceremonies performed in that Southeast Asian nation. Prior to this announcement it was illegal for same sex couples to have a marriage ceremony performed in Vietnam and also illegal for same sex couples to cohabit without fear of government reprisal. It should be noted that these recent measures only allow same sex couples to have a marriage ceremony, notwithstanding the fact that such ceremonies will have no legal recognition in Vietnam (or elsewhere). However, many LGBT rights activists believe that this is a significant step towards eventual marriage equality in Vietnam.

Meanwhile, in the Kingdom of Thailand the struggle still continues to see the full marriage equality. Unlike Vietnam, Thailand has allowed same sex marriage ceremonies within their jurisdiction for some time. It should also be noted that Thailand is one of the most tolerant nations in Southeast Asia when it comes to LGBT issues. However, the law in Thailand still stipulates that a legally recognized marriage is a union between one man and one woman. There are many activists in the Kingdom hoping to change these rules in order to allow same sex couples the right to get married. With recent political turmoil in the Kingdom and uncertainty surrounding upcoming elections it remains to be seen whether any change to the current law will speedily occur, but some believe that the tolerant attitude in Thailand will lead to changes in the law especially in light of the fact that recent proposals in the Thai parliament would, if adopted, allow same sex couples to legalize their marriages.

The issue of same sex marriage legalization is of concern to many same-sex bi-national couples since the Supreme Court’s 2013 decision granting federal recognition of same sex unions. One result of this decision was that same sex couples and spouses are now eligible to receive United States visa benefits in the same manner as different sex couples. Therefore, visas such as the CR-1 visa and IR-1 visa are now available to same sex couples who are already married. Although this may not be a highly sought after category in Southeast Asia at this time as no jurisdiction in the region currently recognizes same sex marriage, it could be of substantial importance in coming years as laws may be amended to equalize marriage laws for the LGBT community. Meanwhile, officials at the United States Citizenship and Immigration Service (USCIS) as well as the Department of State have noted that same sex couples, where one of the partners is American, who maintain a bona fide intention to marry in the USA may be eligible for the K-1 visa (more commonly referred to as a fiance visa). This type of visa allows the foreign fiance of an American citizen to travel to the United States for 90 days for the express purpose of getting married and filing for adjustment of status to Lawful Permanent Residence.

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7th August 2010

This blog frequently discusses topics related to LGBT rights and United States Immigration. At the time of this writing, the Defense of Marriage Act (DOMA) creates a legal bar upon immigration rights for same sex couples as opposed to different-sex couples who may receive US Immigration benefits based upon a marital relations ship (US Marriage Visa) or an intended marital union in the United States (Fiance Visa). In recent months, there have been many developments which are leading many to believe that a repeal of DOMA will likely come soon. In a recent posting on the Immigration Equality blog that author noted a recent California Court decision which upheld same sex couples’ right to marry in the State of California:

In another great victory for LGBT people, Federal District Court Judge Vaughn Walker ruled today that California’s ban on same sex marriages violates the federal constitution.

“Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.”

These are strong words coming from a federal judge and another clear sign that history is on our side. There is no question that this case will be appealed, first to the 9th Circuit, and then to the U.S. Supreme Court, and the decision will be stayed in the interim. This means that even though Judge Vaughn has found that our Constitutional rights have been violated, his decision will no into effect unless and until it is upheld by a higher court.

Because this is a first step in a longer legal battle, there will be no direct benefit to binational couples for now. We’re still reading and digesting the decision and will blog again shortly about its implications. For now, let’s take a moment to celebrate.

In a recent Massachusetts Federal Court decision a Judge held that the Federal government’s failure to recognize a duly formalized same sex marriage in Massachusetts was unconstitutional. However, there will not likely be any practical effect of this decision in the near term as that Judge placed a stay on his Judgment pending appeal. As the above quote noted, there will likely be a stay on this decision, at least for immigration purposes, until a higher court decides the outcome of the case on appeal. That said, the following is quoted from a recent press release from UPI:

“SAN FRANCISCO, Aug. 6 (UPI) — Same-sex marriage backers filed court motions Friday urging a judge to allow such marriages in California immediately while his ruling in the case is appealed.

U.S. District Chief Judge Vaughn R. Walker has said he would issue a ruling on the matter after he reviews written arguments submitted by proponents and opponents of same-sex marriage, the Los Angeles Times reported.

California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown submitted arguments urging the judge to authorize same-sex marriages during the appeal process. Schwarzenegger noted the state performed about 18,000 same-sex marriages before the practice was banned with the November 2008 voter approval of Proposition 8.

“Government officials can resume issuing such licenses without administrative delay or difficulty,” the governor’s office said in its submission to the court.

Brown, the Democratic nominee for governor in the November election, argued in writing there is “the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid” but he said “these potential burdens are outweighed” by the constitutional rights Walker spoke of in his ruling that Proposition 8 violated the U.S. Constitution.

Lawyers for Proposition 8 backers argued same-sex marriages performed in California before the case is heard by the U.S. Supreme Court would be at risk of instability.”

Although the recent decision may not have an immediate direct impact on LGBT Immigration rights, if the Judge grants same sex couples the right to marry in California while the case is pending appeal it would provide a large number of couples with an opportunity to solemnize a marital relationship.

How this issue will ultimately be resolved remains to be seen. However, this issue is quickly becoming a major focal point for interpretation of legal doctrines such as Federalism, States’ Rights, and Substantive Due Process. Ultimately, all of the issues associated with same sex marriage and Same Sex Visa Benefits may need to be adjudicated by the United States Supreme Court.

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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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23rd July 2010

This blog routinely posts information regarding LGBT Immigration and announcements regarding the campaign for equal immigration rights for same-sex bi-national couples. In a recent blog posting on the Stonewall Democrats blog, it was announced that members of the United States House of Representatives are continuing to call for equal immigration rights for same-sex as well as different-sex couples. To quote directly from the blog:

Supporters of immigration and LGBT rights are renewing their calls on Congress to pass comprehensive immigration reform legislation this year that includes protections for bi-national same-sex couples.
At a press conference Thursday on Capitol Hill, several U.S. House members emphasized the importance of passing legislation to make the nation’s immigration laws more fair and enable LGBT Americans to sponsor their foreign partners for residency in the United States.
The strengthened call for passing comprehensive immigration reform comes as limited time remains in the legislative calendar for this Congress, raising questions about whether lawmakers will be able to address major legislation such as immigration reform this year.
Same-sex partners currently have no recourse under any portion of family law in the U.S. immigration code. The policy threatens to keep an estimated 36,000 bi-national same-sex couples from remaining together in the United States.
Among those who spoke in favor of passing immigration reform inclusive of this language is Rep. Jerrold Nadler (D-N.Y.), who sponsors the Uniting American Families Act, a standalone bill that would address the situation for LGBT families.
Nadler said passing immigration reform that includes protections for the LGBT community is “absolutely essential.”
“In particular, binational LGBT couples must be granted the right to sponsor their permanent partners for immigration, just as other committed and straight married couples can,” he said.
Rep. Mike Honda (D-Calif.), the sponsor of another UAFA-inclusive bill known as the Reuniting Familes Act, also addressed the importance of passing such legislation.
Honda said “ending discrimination” against bi-national same-sex couples is “in line with American values and is good for our economy.”
“We know that American workers who have family by their side are happier, healthier and more able to succeed with this essential social safety net,” he said.
Rep. Luis Gutierrez (D-Ill.), a pro-immigrant lawmaker, said passing inclusive legislation is politically viable.
“On a more political note, I am confident that we can pass immigration reform that includes the provisions of UAFA this year,” Gutierrez said, according to his prepared remarks. “Including UAFA makes the tent that much bigger and makes the coalition that much stronger.”
Late last year, Gutierrez introduced immigration legislation that was seen as a more liberal alternative to the working bill expected for introduction in Congress. Although his legislation at the time didn’t include UAFA-like language, he recently revealed his support for including bi-national LGBT families as part of immigration reform.
Other lawmakers who appeared at Thursday’s event to show their support for such legislation were Rep. Jared Polis (D-Colo.), a gay lawmaker and proponent of immigration reform, as well as Rep. Mike Quigley (D-Ill.).
Erwin de Leon, a gay D.C. resident and Blade contributor, also called for UAFA-inclusive legislation at the press conference.
He said passage of such a bill would help him obtain a green card to remain in the United States with his spouse, whom he married earlier this year in D.C.
“Thanks to vagaries of the U.S. immigration system, I still do not have my green card, even though I consider the United States my home, have lived here legally for several years and in my heart know that I am as American as my native-born cousins,” he said.
Along with lawmakers, a coalition of 37 organizations — including LGBT, immigration and faith-based groups — joined in the the chorus of voices calling on Congress to act on immigration reform.
Immigration Equality, one of the organizations working to pass UAFA, is a leading voice among these groups. Other LGBT groups in this coalition include the Family Equality Council, the National Gay & Lesbian Task Force and the Human Rights Campaign.
Rachel Tiven, Immigration Equality’s executive director, said current law is taking LGBT families “and sending them into exile.”
“Together we will fight for immigration reform that protects all families,” she said. “We will organize, we will protest, we will demand that the Uniting American Families Act and the Reuniting Families Act be part of a just, humane and comprehensive immigration reform bill.”
Still, challenges remain in passing UAFA-inclusive legislation. Patrick Egan, a gay political science professor at New York University, said the chances of Congress passing reform inclusive of LGBT families are “pretty low.”
“It’s going to be very difficult to get the 60 votes together in the Senate to move the bill forward and they’re going to be reluctant to put anything in there that jeopardizes its passage,” Egan said. “And this, unfortunately, is one of those issues that can cause you to shed a few votes on the Republican side. And I would be very surprised if that would be in any bill that gets passed by the Senate and the House.”
Sean Theriault, a gay government professor at the University of Texas, Austin, said “there is no chance” that an immigration bill immigration reform will pass this year whether or not it includes UAFA-like language.
“The reason that Democratic leaders and the White House have begun talking about immigration is because it divides Republicans from Hispanics,” he said. “On that score alone, the bill very well may contain [this] language. It is easy to be in favor of wholesale reform when the chances of it passing our zilch.”
Still, Theriault said if Democrats had to start making concessions to pass immigration reform, he couldn’t imagine “they would sacrifice the entire bill for inclusive language.”
Capitol Hill observers expect the U.S. Senate to debate and vote on comprehensive immigration reform legislation before a bill is taken up in the U.S. House. Sen. Chuck Schumer (D-N.Y.), chair of the Senate Judiciary immigration subcommittee, is expected to introduce the legislation in the Senate.
While the Senate bill has yet to be introduced, framework for the legislation made public earlier this year shows support for passing a bill inclusive of LGBT families.
In a brief interview with the Blade on Capitol Hill late last month, Schumer noted the UAFA language was in the framework for immigration reform legislation. Asked whether the provision would be in the bill upon introduction, Schumer replied, “I believe so.”
“I believe in it and I want to see it stay in,” Schumer said.
Asked when he would introduce the legislation, Schumer replied, “We have the proposal and we’re still trying to get some Republican support.”
Schumer said he’s talking to several Republican senators who would be original co-sponsors for the legislation, but declined to identify any lawmakers.
Although no U.S. senator attended Thursday’s press conference, Tiven said advocates wanted to emphasize the support of U.S. House members for UAFA-inclusive legislation.
“We wanted to show what the House is doing to match the Senate’s leadership on inclusive comprehensive immigration reform,” she said.
Julie Kruse, policy director for Immigration Equality, said her organization is planning additional events throughout the country to draw attention to passing UAFA-inclusive comprehensive immigration legislation.
She said cities in Florida, California, Texas, New York and Minnesota are potential places where these events would take place.

Supporters of immigration and LGBT rights are renewing their calls on Congress to pass comprehensive immigration reform legislation this year that includes protections for bi-national same-sex couples.  At a press conference Thursday on Capitol Hill, several U.S. House members emphasized the importance of passing legislation to make the nation’s immigration laws more fair and enable LGBT Americans to sponsor their foreign partners for residency in the United States.  The strengthened call for passing comprehensive immigration reform comes as limited time remains in the legislative calendar for this Congress, raising questions about whether lawmakers will be able to address major legislation such as immigration reform this year.  Same-sex partners currently have no recourse under any portion of family law in the U.S. immigration code. The policy threatens to keep an estimated 36,000 bi-national same-sex couples from remaining together in the United States.  Among those who spoke in favor of passing immigration reform inclusive of this language is Rep. Jerrold Nadler (D-N.Y.), who sponsors the Uniting American Families Act, a standalone bill that would address the situation for LGBT families.  Nadler said passing immigration reform that includes protections for the LGBT community is “absolutely essential.”  “In particular, binational LGBT couples must be granted the right to sponsor their permanent partners for immigration, just as other committed and straight married couples can,” he said. Rep. Mike Honda (D-Calif.), the sponsor of another UAFA-inclusive bill known as the Reuniting Familes Act, also addressed the importance of passing such legislation.  Honda said “ending discrimination” against bi-national same-sex couples is “in line with American values and is good for our economy.”

Frequent readers of the blog will recall the the Uniting American Families Act (UAFA) is considered to be a key piece of legislation for those Americans seeking immigration benefits for their same sex foreign partner.

It should be noted that many States in the USA have either promulgated legislation legalizing same sex marriage or creating civil unions for same sex partners. However, notwithstanding the fact that same sex marriages may be solemnized and recognized by a State, the Federal government, based upon legislation such as the Defense of Marriage Act (DOMA), refuses to recognize these marriages for purposes of awarding immigration benefits. Therefore, as of the time of this writing, there is no “Same Sex Visa” accorded to LGBT bi-national couples. However, there are currently cases pending in the US Courts which may overturn this practice as many feel that this type of discrimination violates States’ Rights as well as the Equal Protection Clause of the US Constitution. However, the ultimate adjudication of these issues may have to be addressed by the United States Supreme Court if legislation is not promulgated which would grant equal immigration benefits to the same sex partner of a US Citizen or Lawful Permanent Resident.

For further details about US visas for different-sex couples please see: K1 visa.

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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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