Integrity Legal

Posts Tagged ‘Same Sex K3 Visa’

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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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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