Integrity Legal

Posts Tagged ‘same sex marriage visa’

18th September 2013

Reportedly, Thai human rights officials and Parliament members are poised to bring forth a bill to legalize same sex marriage in the Kingdom of Thailand. Apparently, these moves are being made in attempt to equalize the discrepancy between marital benefits enjoyed by different-sex couples when compared to their same-sex counterparts. Similar to the recent United States Supreme Court decision which compelled the United States Federal government to recognize same sex marriages which were duly legalized in the states allowing such unions, the proposed bill would provide marriage equality to same sex couples in Thailand and also equalize tax and pension benefits for those same sex couples who register their marriage in Thailand. Other parliament members were reportedly called upon to add their signatures to the bill in an effort to show broad based support for such legislation. For further information on this recent report please see the official website of The Nation.

There are a few lingering issues that remain to be answered regarding this subject as the prospect of same sex registered marriage in Thailand could be deemed a “civil union”. As civil unions in the USA are not currently accorded the same legal status as marriages the prospect of Thai same sex civil unions (although, from a legal standpoint, very advantageous for those living in Thailand) may not accord the same United States Immigration benefits as Thai same sex marriages, if the two are considered mutually exclusive under Thai law. That stated, currently Thailand has no other type of state sanctioned domestic union other than registered marriage, in a sense, all registered marriages in Thailand could be deemed “civil unions” since it is the civil registrar who registers them. The marriage ceremony is performed in Thailand with no legal effect. Therefore, many couples undertake a marriage ceremony with no legal effect and do not register their marriages, in such cases such couples are still eligible for a US fiance visa. The recent report notes that the bill would provide complete equality between same sex and different sex unions. As a result, it could be inferred that future same sex unions will be viewed in exactly the same light as different sex unions under Thai law. Should this prove to be the case, then it may be possible for future same sex couples with a registered marriage in the Kingdom of Thailand to apply for United States Immigration benefits such as the CR-1 visa and the IR-1 visa in the same manner as Thai-American different-sex married couples. In any event, the recent announcement is a significant positive signal that Thailand may become the first nation in Asia to legalize same sex unions.

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5th August 2013

In a previous posting on this blog, the recently released answers from the United States Citizenship and Immigration Service (USCIS) to frequently asked questions regarding same sex immigration petitions were analyzed. It recently came to this blogger’s attention that the American State Department has released a similar set of answers to FAQs regarding this topic.  To quote directly from the official website of the U.S. State Separtment:

Q: How does the Supreme Court’s Windsor v. United States decision impact immigration law?

A: The Supreme Court has found section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Effective immediately, U.S. embassies and consulates will adjudicate visa applications that are based on a same-sex marriage in the same way that we adjudicate applications for opposite gender spouses.   This means that the same sex spouse of a visa applicant coming to the U.S. for any purpose – including work, study, international exchange or as a legal immigrant – will be eligible for a derivative visa.  Likewise, stepchildren acquired through same sex marriages can also qualify as beneficiaries or for derivative status. [italics added]

As previously discussed on this blog, the fact that Section 3 of the Defense of Marriage Act (DOMA) has been found unConstitutional by the United States Supreme Court means that an American Citizen, or lawful permant resident, can now petition the United States Citizenship and Immigration Service (USCIS) for imigration benefits for a same sex spouse (or fiance, so long as the petitioner is an American Citizen). However, the US State Department, which is responsible for Consular Processing of visa applications, had yet to make specific comments regarding adjudication of visa application based upon a same sex marriage (or fiance) immigration petition. As can be seen from above, the Department of State has brought their procedures into line with the recent Supreme Court decision.

Of interest to many same sex couples is the issue of jurisdiction as same sex marriages are only recognized by a limited number of US States. The following portion of the aforementioned FAQ focuses on this point:

Q: Do we have to live or intend to live in a state in which same sex marriage is legal in order to qualify for an immigrant or nonimmigrant visa?

A: No. If your marriage is valid in the jurisdiction (U.S. state or foreign country) where it took place, it is valid for immigration purposes.  For more information, please review the following page on the United States Citizenship and Immigration Service’s (USCIS) website. [italics added]

As there are a limited umber of U.S. jurisdictions which recognize and solemnize same sex marriage as well as a number of States in which such marriages are forbade, there have been questions among legal professionals as well as same sex couples regarding whether the U.S. Immigration officers and Consular Officers at various U.S. posts abroad would fail to approve visa applications and immigration petitions based upon the fact that an LGBT couple may be married in one State and residing in another. In a previous posting on this blog, the USCIS’s answer to this question rested on the “law of the place where the marriage took place“. Basically, USCIS appears willing to approve an otherwise valid immigration petition based upon a same sex marriage if the same sex marriage is performed in a State which allows such unions. Apparently, the Department of State has set a similar policy, thereby allowing an otherwise valid same sex marriage visa application, based upon an USCIS-approved immigration petition, to be approved. However, there are some jurisdictions around the world which may recognize same-sex unions, but do not necessarily categorize them as “marriages”. In those circumstances the Department of State had the following to say:

Q: I am in a civil union or domestic partnership; will this be treated the same as a marriage?

A: At this time, only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for  immigration purposes. [italics added]

Although the above answer appears to be rather straightforward, there is one question, of possibly more significance, that many unmarried same sex couples may be pondering:

Q: I am a U.S. citizen who is engaged to be married to a foreign national of the same sex.  We cannot marry in my fiancé’s country. What are our options? Can we apply for a fiancé K visa?

A: You may file a Form I-129F and apply for a fiancé(e) (K) visa.  As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for the purpose of marriage.  For information on adjusting status, please review the following page on USCIS’s website:

Since same sex unmarried couples are now permitted to apply for a K-1 visa, it would now appear possible for the LGBT fiance of an American Citizen to apply for a US fiance visa with the intention of marrying in one of those jurisdictions in the United States which recognize same sex marriages.

Another issue which may arise in the context of same sex marriage is the issue of non-immigrant visas (also known as NIVs). These are visa categories which do not confer immigrant status upon those who use them. The Department of State website posted the following information regarding NIVs for same sex married couples:

Q: Can same sex couples now apply for visas in the same classification?

A: Yes. Starting immediately, same-sex spouses and their children are equally eligible for NIV derivative visas.  Same-sex spouses and their children (stepchildren of the primary applicant when the marriage takes place before the child turns 18) can qualify as derivatives where the law permits issuance of the visa to a spouse or stepchild.  In cases where additional documentation has always been required of a spouse applying with a principal applicant, such documentation will also be required in the case of a same-sex spouse… [italics added]

Finally, a point to note for those LGBT couples who are in a situation in which the foreign spouse has children:  

Q: My foreign national spouse has children. Can they also be included with my spouse’s case?

A: Yes, the children of foreign national spouses can be considered “step-children” of the U.S. citizens and can therefore benefit from a petition filed on their behalf in the IR2 category.    In other categories, stepchildren acquired through same sex marriage can qualify as beneficiaries (F2A) or for derivative status (F3, F4, E1-E4, or DV).  You and your spouse must have married before the child turned 18. [itlaics added]

Clearly, the Department of State allows for step-children of Americans or lawful permanent residents to immigrate where the LGBT couple was married prior to the step-child’s 18th birthday. From the information posted on the State Department’s website regarding non-immigrant visas one could infer that an American Citizen’s prospective step-children (i.e. the children of a foreign fiance) may also be eligible to obtain a K-2 visa based upon the bona fide intention of the American Citizen and his or her foreign fiance to marry in the United States.

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5th April 2011

In a recent episode of Bill Maher’s popular television program Mr. Maher noted the fact that the debate on same sex marriage is being stubbornly maintained despite the continued damage it does to honest American Citizens and their families. He also noted the somewhat hypocritical stature of the current position held by the administration and the Congress regarding the issue of same sex marriage. After watching this program this blogger felt as though Maher had failed to take into consideration the endeavors of some steadfast legislators on behalf of the LGBT community and those same sex bi-national couples who continue to hope for legal change either in the form of judicial or legislative action.

A fascinating article on this issue was posted on an interesting website known as the Business Insider.  To quote directly from the Business Insider website BusinessInsider.com:

In his New Rules segment last night, Bill Maher took Obama and the Democratic party to task for not being able to pass gay marriage in America, even though more than a majority of people support it for the first time.

The administration of this web log highly encourages readers to click on the hyperlinks above to read the Business Insider’s take on these issues as the piece written by the author Steven Loeb is quite enlightening and insightful.The issue of same sex marriage is increasingly in the news as developments on the issue seem to be occurring quite quickly at the time of this writing. One of the reasons for this may stem from a sincere hope that the notion of Equal Protection under the Federal law will be extended to all American Citizens regardless of their sexual orientation and/or preference. Concurrently, there are those who also hope that Federal authorities recognize the Several States’ Right to regulate the marriage of those within their jurisdiction. Furthermore, there are others who hope that some of these issues could be resolved by the United States Supreme Court as there are likely legal implications pursuant to the Full Faith and Credit Clause of the United States Constitution. Putting these issues aside, Mr. Maher went on to note, humorously if somewhat crudely, quoting further from the Business Insider:

…that only 53% of people support it, which means that “47% of Americans are assholes.”

“But still, this is remarkable progress considering that it wasn’t that long ago that just saying the words gay marriage made most Americans throw up in their Cornflakes. So, tonight, I’d like to congratulate the leadership of the Democratic party who really stood up for what was right. I’d like to, but I can’t. Because other than Gavin Newsom, Dennis Kucinich and that Governor of New Jersey… no Democrat would touch this issue with a ten inch pole.”

Although this blogger has often noted the exploits of Representative Dennis Kucinich this monologue by Maher should be noted first for the fact that for all of the hyperbole and some might say profanity: the man is right. Same sex marriage is apparently becoming increasingly popular to a broader sector of the population, even though the cause has seen relatively little support at times from so-called “main stream” sections of either political party. Meanwhile, there are strong legal arguments which can be made against the Federal government’s enforcement of the so-called “Defense of Marriage Act” (DOMA) as it applies in sovereign US States which recognize, legalize, and/or solemnize same sex marriages. That stated, the Constitutionality of DOMA is questionable in terms understandable by broad sectors of the population as DOMA’s continued withholding of Federal recognition of unions  solemnized and legalized by 6 States and the District of Columbia infringes upon sovereign rights long reserved to the States, most notable among these rights is the right to solemnize and/or legalize marriages within the State’s jurisdiction (as well as annulment and/or divorce) as noted in a recent Massachusetts Federal Court decision.

Putting all of this aside, why no mention of Representative Jerrold Nadler? Why no mention of the other legislators who have championed this cause such as Representative Zoe Lofgren or Senator Kirsten Gillibrand? In the case of Representative Nadler, whom this blogger has followed with keen interest as he appears, at least to this blogger, to be the Federal legislator most active on this issue: here is a Democrat from New York who has continued to be an advocate for same sex bi-national couples as well as the entire LGBT community by actively supporting legislation such as the Respect for Marriage Act, the Uniting American Families Act, and; perhaps, Comprehensive Immigration Reform legislation which would include relevant language allowing same sex bi-national couples to receive United States immigration benefits to the same degree as their different-sex counterparts. This blogger is not disagreeing with Mr. Maher’s opinion on the issue of some Democrats apparently refusing to support legislation which would modify or repeal DOMA, but in an attempt to see that some credit is given where due it has been repeatedly noted on this blog that Representative Nadler has remained a champion of legislation which would reform what many feel is a flagrant violation of the civil rights of many Americans as well as the States’ right to make policies regarding the legalization and solemnization of marriages.

It should be noted that this blogger is in no way affiliated with Representative Nadler having never personally dealt with his office nor his staff and this mention is in no way an endorsement of anything other than his position on respecting the civil liberties of all Americans to marry whomever they choose and the State institution of marriage.

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30th December 2010

In an interesting recent turn of events LGBT Equal Rights advocates have seen many political victories in recent weeks. This blogger came across and interesting article on the website Wikinews.org, to quote directly from Wikinews:

Friday, December 24, 2010

In an interview on the United States television show Good Morning America today, U.S. vice president Joe Biden said that a positive consensus on same-sex marriage is “inevitable” as the country “evolves.”

“[There is] inevitability for a national consensus on gay marriage. I think the country’s evolving. And I think you’re going to see, you know, the next effort is probably going to be to deal with so-called DOMA,” said Biden.

For those who are unfamiliar with the issues surrounding the struggle for LGBT Equal Rights the so-called Defense of Marriage Act (DOMA) currently bars the United States Federal government from recognizing same sex marriage (or any other sort of same sex civil union). The Federal government, pursuant to the provisions of DOMA, is not even permitted to recognize those same sex marriages which are legalized and solemnized pursuant to an American State’s law. Currently, 5 US States allow some form of same sex marriage or civil union. For Immigration purposes, DOMA is a significant piece of legislation as it forces the American Federal government to restrict family immigration benefits to different sex couples. The product of these circumstances as they sit now is a situation in which many bi-national couples are separated from each other by borders, and sometimes oceans. Wikinews.org went on:

Biden’s remarks come just days after U.S. president Barack Obama signed into law, the repeal of Don’t ask, don’t tell (DADT). The repeal, which was signed by Obama on Thursday, will now allow gay and lesbian service members to serve openly in the country’s military, without fear that they will be discharged form service. A report by The Pentagon earlier this month concluded most U.S. service personnel do not believe reform of the rules on gays and lesbians serving in the military would affect morale, unit cohesion or military effectiveness. The report found only 30% believed that changing the law would have a negative effect. DADT, in effect for 17 years, was repealed by the United States Senate on Saturday. The military will cease enforcement of the policy in 60 days time, after the Pentagon has certified to Congress that it, and the military are ready to implement the new law.[sic]

The repeal of Don’t Ask Don’t Tell was a significant step forward for Gay, Lesbian, Bisexual, and Transgendered (LGBT) individuals, but full equality under the law has yet to materialize especially as DOMA remains in place thereby precluding family immigration benefits for LGBT couples. Some lawmakers have attempted to draft legislation to deal directly with the issue of discrimination of bi-national same sex couples for immigration purposes. In recent years, legislation such as the Uniting American Families Act (UAFA) has been introduced to allow “permanent partners” of American Citizens or Lawful Permanent Residents to obtain immigration benefits similar to those granted to different-sex spouses of US Citizens and Lawful Permanent Residents. This blogger recently came upon an interesting webpage pertaining to this issue on the website logcabin.org, the official website of the Log Cabin Republicans, to quote directly from said webpage:

The Uniting American Families Act (UAFA), pending in Congress, would end the discrimination against gays and lesbians in immigration laws by allowing U.S. citizens and permanent residents to sponsor their same-sex partners for immigration benefits. The version of the bill introduced in the House last February (H.R.1024) currently has 116 cosponsors, while the Senate version (S. 424) has 22 cosponsors. In addition, the Reuniting Families Act (H.R.2709) also includes UAFA as a provision of the larger immigration bill.

While some groups hostile to immigration fear that the UAFA would open the floodgates to massive immigration, such fears are unfounded. It would grant residency only to those foreign nationals involved in a financially interdependent permanent partnership with a U.S. citizen. Many of these individuals have already been living in the U.S. for years on special work or student visas and have been contributing to American society. In any event, the administrative checks that ensure that heterosexual couples applying for residency are not involved in a “sham” relationship will do the same for gay and lesbian couples. The measure is simply not a conduit for unfettered immigration.

There would seem to have been some speculation that passage of an UAFA-like piece of legislation would result in an explosion of fraudulent visa applications submitted by those wishing to take advantage of what appears, at first glance, to be a new avenue for seeking immigration benefits through use of a “sham” relationship. In this authors opinion, it is highly unlikely that passage of UAFA-like legislation would result in a significant increase in immigration fraud as the United States government currently has a very sophisticated system in place which is designed to root out immigration fraud at multiple levels of the immigration system and at multiple phases of the overall United States immigration process.

Hopefully, as Vice President Biden noted above, a “positive consensus” on this issue can be reached with the end result being the unification of bi-national families in America.

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23rd December 2010

Those who frequently read this web log may have noticed that this author occasionally comments upon the progress of American gaming legislation as recent legislative enactments have greatly altered the online gaming landscape. Although this issue would not seem similar to that of LGBT rights at first blush, there are some commonalities from a legal perspective which were recently noted in an article written by April Gardner for the website casinogamblingweb.com. To quote directly from this article:

US lawmakers took the first step on Saturday towards giving all Americans the same rights and freedoms when the Senate voted to repeal Don’t Ask, Don’t Tell. Online poker players are hoping this was the first step towards full freedom, and that the Unlawful Internet Gambling Enforcement Act repeal may be next.

The repeal of the policy referred to as “Don’t Ask, Don’t Tell,” was a significant achievement for proponents of LGBT rights. That said, as noted in a previous posting on this blog, the Defense of Marriage Act (DOMA) still continues to act as a barrier to equal immigration rights for same sex bi-national couples as well as LGBT bi-national couples. At one point, it was thought that the Defense of Marriage Act’s provisions might be circumvented in the context of US Immigration through enactment of the Uniting American Families Act (UAFA), but, alas, this legislation has yet to be enacted. Therefore, there are those who argue that there is still a long way to go in the fight for equal rights for the LGBT community. That said, the article went on to note:

The Don’t Ask, Don’t Tell law is one that Democrats have been pushing hard to repeal for several years. Another of those ill-advised laws on the radar for Liberals is the UIGEA. In recent weeks, Senator Harry Reid has proposed an online poker bill, but that legislation alone would not have overturned the UIGEA.

Although at first glance the UIGEA (the Unlawful  Internet Gambling Enforcement Act) and the policy of “Don’t Ask, Don’t Tell” would seem to be dissimilar in nature. In fact, these two issues touch upon a very significant issue which seems to be continuously debated in the United States. This issue transcends party ideology: personal freedom. The ability to freely, peaceably, and consensually associate with whomever one chooses is a fundamental right enshrined in the United States Constitution and the Bill of Rights. Many would argue that the law forbidding same sex bi-national couples, even those lawfully married in one of the 5 US States which currently solemnize same sex unions, from obtaining the same immigration rights as different sex couples is self-evidently a violation of the right to equal protection under American law. In this same vein, there are many who argue that Americans should have the ability to choose to participate in online gaming so long as they are above the lawful age to engage in such activity in their jurisdiction and the gaming operation is regulated so as to ensure that games are fair and the gaming operator is solvent. That said, the author of the aforementioned article seems pessimistic about the short term future of legislation designed to regulate and thereby legitimize online gaming:

It is unlikely that online gambling prohibition will be discussed in the closing days of the lame-duck session. For online poker players, however, they can take comfort in the Don’t Ask, Don’t Tell repeal.

The repeal shows that everything is worth the wait, as millions of gay and lesbians exhibited Saturday through tears of joy. It may take a little longer, but those tears of joy will eventually come for the millions of online gamblers in this country as well.

Truly, the repeal of “Don’t Ask, Don’t Tell,” was a monumental step forward for advocates of Equal Rights, but the issue of online gaming remains both controversial and complicated in the USA as many different jurisdictional issues arise especially in the context of the internet and World Wide Web. Therefore, it remains to be seen what the US Congress will ultimately decide to do with regard to online gaming, but hopefully the eventual outcome will result in positive benefits for players, operators, and the United States economy as this sector could prove to be an area of job growth for the USA in the coming years.

For related information please see: Online Gaming Law or Same Sex Marriage Visa.

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21st December 2010

This blog was not very adept at staying on top of the issues surrounding the so-called DREAM Act which would have made a great deal of progress in dealing with issues pertaining to the children of undocumented immigrants wishing to regularize their status in the United States. Recently, it was reported the the DREAM Act legislation was effectively derailed through use of cloture in the United States Senate. The American Immigration Lawyers Association has been working diligently to try to assist in this bill’s passage, but to no avail. To quote directly from the website of AILA:

WASHINGTON, DC – The American Immigration Lawyers Association (AILA) is disappointed that, after successful passage in the House, the Senate failed to advance the bipartisan DREAM Act this morning. The legislation did not garner enough votes to overcome a procedural hurdle, even though with 55 votes it had the support of a majority of the chamber’s lawmakers.

“It was with a heavy heart that I watched the DREAM Act deferred to yet another Congress. After the historic House victory and the tremendous outpouring of grassroots support for this legislation that would help deserving young people, today’s failed cloture vote is a wrong-headed dénouement,” said AILA President David Leopold who watched the legislative proceedings from Capitol Hill.

“It was sad to see some U.S. Senators putting politics before principles to vote no on cloture, thereby attaching their names to the wrong side of history. The DREAM Act did not pass today, but inevitably it will be law.”

The DREAM Act’s failure is disappointing for many, but there are those who still believe that the most pressing issue in the realm of United States Immigration is that of the Uniting American Families Act (UAFA). Passage of this legislation would alleviate the current restrictions placed upon same sex or LGBT bi-national couples who wish to be reunited in the USA. Under the provisions of the so-called “Defense of Marriage Act” (DOMA) same sex couples, even those lawfully married in a jurisdiction within the United States of America, cannot obtain the same family based visa benefits compared to their different sex counterparts. There are many who seem to feel somewhat frustrated by the fact that other legislation such as the DREAM Act has gained traction on Capitol Hill while legislation such as UAFA, or legislation which includes  UAFA-like language, has not garnered such substantial support. To quote from a posting posted prior to the DREAM Act’s Senate vote by Melanie Nathan on the Lezgetreal.com blog:

The US has yet to enact laws that will prevent gay and lesbian couples from having to exile to stay with foreign partners or from partners facing deportation.  The discrimination in the USA is based on the fact that same-sex partners are specifically excluded from Federal rights – such as the right to sponsor a spouse for a green card, because of the Defense of Marriage Act. (DOMA)

There are some who would argue that DOMA violates the notions of state sovereignty and individual civil liberties enshrined in the US Constitution and Bill of Rights by depriving US Immigration benefits to LGBT couples while granting them to different sex couples. Bearing this in mind, it ought to be noted that the States’ Rights arguments in favor of overturning DOMA became much more potent after some American States began recognizing and solemnizing same sex unions. There are some who feel that the final decision in this matter may ultimately be made by the US Supreme Court as cases are currently proceeding through the US judicial system which could overturn DOMA. It still remains to be seen whether DOMA will remain in force, be circumvented through use of UAFA, or be overturned by the US Courts. In any case, there are many who hope that some sort of solution arrives soon as many bi-national families remain separated as a result of DOMA’s continued enforcement.

For related information please see: LGBT Visa.

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12th October 2010

ตามที่ได้กล่าวถึงในบทความก่อนแล้วเรื่องการที่จะมีการออกกฎหมายคนเข้าเมืองของ LGBT(กลุ่มเลสเบี้ยน เกย์ ไบเซ็กชวลและผู้ที่แปลงเพศ)และการที่คู่เพศเดียวกันมองหาสิทธิที่เท่าเทียมกันในกฎหมายคนเข้าเมืองอเมริกัน เมื่อเร็วๆนี้มีการอ้างถึงในเว็บไซต์ lezgetreal.com ซึ่งเป็นเว็บไซต์ของสมาชิกวุฒิสภาสหรัฐโรเบิร์ต เมเนนเดซซึ่งมีการนำเสนอการปฏิรูปการเข้าเมือง อ้างถึงเมลินีน นาธานจากเว็บไซต์ที่กล่าวไว้ก่อนหน้านี้

เคทรี ดราสกี้จาก OUT4Immigration กลุ่มของคนส่วนมากที่เป็นสามัญธรรมดาได้จัดกิจกรรมและเขียนจดหมายรณรงค์ตามที่ประกาศอยู่ในเว็บ www.Out4Immigration.org

บล็อกวันนี้ซึ่งสมาชิกวุฒิสภาสหรัฐโรเบิร์ต เมเนนเดซ (D-NJ)นำเสนอการตรากฎหมายเพื่อการปฏิรูปการเข้าเมืองซึ่งเป็นเรื่องที่ครอบคลุมถึงบทบัญญัติของคู่เพศเดียวกัน

การบรรลุผลสำเร็จที่ยิ่งใหญ่เกิดขึ้นหลังจากหลายเดือนของ” โทรศัพท์ จดหมาย และการเข้าเยี่ยมผู้แทนคองเกรสและเจ้าหน้าที่ของOut4Immigration, Immigration Equality บุคคลและกลุ่มบุคคลอุทิศตนเพื่อยุติความแตกต่างของ LGBT(กลุ่มเลสเบี้ยน เกย์ ไบเซ็กชวลและผู้ที่แปลงเพศ) กับคู่ชาวต่างชาติซึ่งรู้จักกันในนาม “คู่เพศเดียวกัน”

ยังคงเป็นเรื่องที่ไม่แน่ชัดว่า การตรากฎหมายจะได้รับการอนุมัติจากสภาคองเกรสสหรัฐจนเป็นกฎหมายสหรัฐอเมริกา แต่ในเบื้องต้นของการตรากฎหมายนั้นสองคดีในศาลกลางของสหรัฐอเมริกาที่จะช่วยเพิ่มความเป็นไปได้ในการเปลี่ยนแปลงข้อบังคับของคู่เพศเดียวกันภายใต้พระราชบัญญัติคุ้มครองการแต่งงาน (DOMA)

มีผู้ที่เห็นว่าพระราชบัญญัติการปฏิรูปการเข้าเมืองนั้นอาจจะไม่สามารบังคับเป็นพระราชบัญญัติอย่างหลีกเลี่ยงไม่ได้เนื่องจากต้องมีการอนุมัติในกระบวนการร่างขั้นตอนสุดท้าย กระบวนการตรากฎหมายนั้นยังไม่เสร็จสิ้นจนกระทั่งจะ ได้รับการอนุมัติจากทั้งสภาคองเกรสสหรัฐและวุฒิสภาด้วยการอนุมัติของประธานาธิบดี ประธานาธิบดีควรเลือกที่จะคัดค้านการตรากฎหมาย อาจจะไม่มีการเปลี่ยนแปลงข้อบังคับการเข่าเมืองที่ใช้อยู่ในปัจจุบันเกี่ยวกับสิทธิประโยชน์ของคู่เพศเดียวกัน (แม้แต่คู่ที่แต่งงานอย่างถูกต้องตามกฎหมายในบางรัฐ) นอกจากนี้ การเปลี่ยนแปลงร่างพระราชบัญญัติในขั้นสุดท้ายของการการอนุมัติ อาจจะไม่มีการเปลี่ยนแปลงสถานการณ์ในปัจจุบันของคู่เพศเดียวกัน ดังนั้นจนกระทั่งการตรากฎหมายได้รับการอนุมัติ ทั้งผู้สนับสนุนและผู้คัดค้านยังคงจัดการรณรงค์ด้วยเหตุผลของแต่ละฝ่าย

Please follow this link to see this post in English: Same Sex marriage visa

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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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