Integrity Legal

The authors of this blog keep a close eye upon pending legislation in both the Kingdom of Thailand and the United States of America. Vigilance must be maintained in order to be fully aware of all of the current Immigration policies, procedures, rules, regulations, and laws in both countries. This blog has repeatedly reported on issues involving same-sex couples seeking United States Immigration benefits as this poses one of the most politically pressing and legally confusing issues of United States Immigration at this time.

Currently, the United States Congress is debating legislation that would attempt to tackle some of the major problems in the area of US Immigration. Recently a bill was introduced that would reform current American Immigration law with regard to refugees. Some feel that an even more pressing piece of legislation is that which would provide comprehensive immigration reform in the USA.

Same Sex Immigration issues have been dealt with in separate proposed legislation called the Uniting American Families Act (UAFA), but there are those who hope that a Comprehensive Immigration Reform bill will eventually include immigration benefits for same sex couples. A very popular website and blog, Immigration Equality.org, has been posting updates regarding the situation in Washington D.C. where marchers will be falling upon the US Capital to demand Comprehensive Immigration Reform legislation. Most notable, is the fact that among the marchers LGBT rights activists are campaigning for equal rights in the US immigration process. To quote Immigration Equality’s blog directly:

“In the midst of the tens of thousands rallying for reform, a contingent of 300 to 500 people will on hand, with rainbow flags in hand, to bring attention to the struggles of lesbian, gay, bisexual and transgender (LGBT) immigrants and their families. And before they set their first foot on the grassy lawn off Constitution Avenue, their presence is already being felt and making change.”

The blog added a personal touch to its report of this demonstration:

“[Laurie] Larson will be marching with the Immigration Equality contingent in honor of her close friend Steve – an American citizen – whose partner of nearly a decade, Joe, was recently forced to leave the country after losing his job and, by extension, his work visa, too. Had Steve been in a heterosexual relationship, he could have married his partner and they would have qualified for residency. But because Steve and Joe are both male, that option doesn’t exist for them. Under current U.S. immigration law, Steve cannot sponsor Joe for residency simply because they are gay.”

The idea that an American Citizen, who could legally marry a foreign national of the same sex in some US jurisdictions, cannot obtain a US family based visa for their same sex loved one definitely smacks of inequality where the same American could petition for visa benefits for their loved one if the loved one was of a different sex. That being said, these issues have yet to be played out and there are some who believe that the issues of same sex family based immigration will likely be dealt with in the US Courts as the Defense of Marriage Act‘s (DOMA) constitutionality is currently being challenged by the Commonwealth of Massachusetts.

For information on US Immigration in general please see: US Visa Thailand.

Tags: CIR, Comprehensive Immigration Reform, Defense of Marriage Act, DOMA, gay immigration, lgbt immigration, lgbt visa, Same Sex Immigration, uafa, Uniting American Families Act, US Gay Visa, US LGBT visa, US same sex visa, US visa same sex marriage massachusetts
Posted in lgbt immigration, same sex visa | No Comments »

Recently, one of the administrators of this blog came across an article on the Telegraph’s website. The article reported on the recently announced future legalization of same-sex marriage in the country of Nepal. To quote the article directly:

“Nepal’s homosexual community, which is led by Asia’s only openly gay member of parliament, will next month host a tourism conference to explore how to attract wealthy gay visitors to boost the country’s war-ravaged economy. The country’s new constitution will legalise homosexual marriage in May this year, when “Pink Mountain” will begin offering luxury honeymoon and wedding packages.”

This is a rather stunning announcement as few countries in Asia have legalized marriage between individual’s of the same sex. The article went further:

“Sunil Babu Pant, a Communist legislator and leader of the country’s homosexual rights movement, has launched a travel company dedicated to promoting the former Hindu kingdom to gay tourists in an effort to tap the so-called “Pink Pound” and dollar…Mr Pant is hoping to build on the government’s new determination to maximise income from tourism by targeting all potential markets…’The government is hoping to increase the number of tourists from 400,000 to one million next year and has taken a positive attitude to welcoming gay and lesbian visitors to help meet their ambitious target,’ he told The Daily Telegraph on Tuesday.”

This move should be applauded not only because many feel that it is the morally correct thing to do, but also because it will likely result in a major economic boon for Nepal.  A question on the minds of many who are interested in the issue of same-sex marriage and US Immigration is: how will this impact rights of gay couples who wish to immigrate to the United States of America?

In the short term, movements such as this will not have a direct impact on US Federal Immigration policy as the Defense of Marriage Act (DOMA) still precludes the promulgation of US Immigration benefits based solely upon a same-sex marriage. However, as more countries begin to legalize marriage between people of the same sex it becomes more apparent that the movement has gained something of a critical mass internationally. Further, the legality of DOMA is likely to eventually be taken up by the United States Supreme Court as there is currently a pending Federal Court Case in Massachusetts as well as a challenge in California Federal District Court to the provisions of “Prop 8″ in California.

It would seem that if the US Supreme Court overturns DOMA, then a valid same sex marriage in a country such as Nepal could be used as a basis for applying for US Immigration benefits. That being said, if DOMA were repealed then same-sex partners could possibly be entitled to file for such US Immigration benefits as a K1 visa or a K3 Visa at a US diplomatic post abroad (such as the US Embassy in Nepal). However, these issues have not been fully resolved and current US same-sex family immigration policy remains as an insurmountable obstacle to re-uniting many same-sex couples in the USA.

Another issue to remember on this topic is the Uniting American Families Act (UAFA) which would provide US Immigration benefits to the “Permanent Partners” of US Citizens or lawful permanent residents. A valid marriage would probably be seen as a strong piece of evidence supporting a claim of “permanent partnership.”

Tags: Defense of Marriage Act, DOMA, K1 Visa, K1 visa gay marriage, K1 visa same sex marriage massachusetts, K3 Visa, K3 visa gay marriage, Same Sex Marriage, same sex us immigration, uafa, Uniting American Families Act, US visa gay marriage
Posted in CR1 Visa, Fiance Visa Thailand, IR1 Visa, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, K3 Visa, Legal Opinion, Miscellaneous, US Embassy Kathmandu, US Embassy Nepal, US Visa and Immigration, US Visa Thailand | No Comments »

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.

Tags: Defense of Marriage Act, DOMA, gay immigration, gay us immigration, gay us visa, gay visa, lgbt immigration, LGBT US Visa, same sex us visa, same sex visa, uafa, Uniting American Families Act
Posted in General Legal Information, Legal Opinion, Miscellaneous, US Visa and Immigration, US Visa Thailand | 1 Comment »

As the movement towards the eventual repeal of the Defense of Marriage Act (DOMA) continues, it appears that proponents of repeal may score a minor victory by enlisting Senator Russ Feingold to introduce repeal legislation.

The Washington Blade reports,

“[Senator] Feingold is an attractive ally to introduce a DOMA repeal bill because he chairs the Senate Judiciary Committee’s Constitution Subcommittee, which hold jurisdiction over DOMA, she said.”

Concurrently, it would appear that Jerry Nadler, Democratic Member of the House of Representatives, is preparing to introduce a bill to repeal DOMA. Under the provisions of the DOMA repeal currently being considered, states would not be forced to recognize same-sex marriages conducted in other states, but the Federal government would be required to recognize these marriages and provide federal benefits.

Allison Herwitt, legislative director of the Human Rights Campaign, was quoted as saying, “You could, if you lived in Oklahoma, travel to Massachusetts, or one of the other [five] states get married and [go] back to Oklahoma,” she said. “The state would not have to recognize your marriage, but federal benefits would flow.”

Jerry Nadler is notable for having introduced federal legislation known as the Uniting American Families Act (UAFA). This proposed legislation would have granted US Immigration benefits to the same-sex “permanent partners,” of American Citizens or Lawful Permanent Residents (holders of US Green Card).

This proposed DOMA repeal would likely have the same effect as the provisions under the UAFA because it would theoretically accord the same sex spouse of an American Citizen the same privileges granted to different sex couples unde ramerican Immigration law. For example, if a bi-national same sex couple was validly married in Massachusetts and then the American Citizen filed an I-130 petition on behalf of his or her spouse, then the federal government would be compelled to recognize the marriage for the purposes of granting the Immigration benefit.

Further, one could argue that an American citizen could file a K1 visa application based upon the couple’s intent to travel to a jurisdiction in the United States which recognizes same-sex marriage and execute a valid marriage. It is thought that should this form of the DOMA repeal pass, then a fiance visa application filed for the above outlined purpose would be approved. That being said, as the bill has not been legalized and the contents are subject to change, it any analysis of USA visa implication is simply an exercise in speculation at this time.

(This is information provided for educational purposes. An attorney-client relationship should not be construed to exist between author and reader.)

Tags: Defense of Marriage Act, DOMA, DOMA repeal, I-130, Jerry Nadler, K-1 Visa, K1 Visa, K1 visa application, uafa, Uniting American Families Act
Posted in Thailand Business | No Comments »

This blog has been keeping track of the US Immigration implications of recognition of Same Sex Marriage under United States Federal law. Currently, a US law known as the Defense of Marriage Act (DOMA), precludes the United States Federal government from recognizing same sex marriage (even when the marriage was validly executed in one of the fifty US States). Also, DOMA provides American states with the option of not recognizing same-sex unions in other states (although this provision has been question on Full Faith and Credit grounds).  Since the United States government does not recognize same sex marriage, same sex bi-national couples cannot obtain US Immigration benefits based upon a marital relationship.

There are currently movements to provide immigration benefits for same-sex couples. One pending bill is known as the Uniting American Families Act which has apparently been reborn under a new moniker: the Re-Uniting American Families Act. There is also a movement gaining a great deal of steam that seeks a full repeal of the Defense of Marriage Act. It is this author’s opinion, that eventually the Defense of Marriage Act will be repealed. The upshot of DOMA’s repeal will be an increase in family immigration benefits for same sex couples.

This pending legislation and political movement has been the focal point of many posts previously written on this blog, but since this blog is also concerned with Thai law, it begs the question: does Thailand recognize same sex marriage? The short answer: No. It should be noted that Thailand is one of the most tolerant cultures in the world, particularly regarding gay rights. That being said, there is no process under Thai law for legalizing a relationship of two people who are of the same sex. In many countries, a legal partnership known as a “civil union” is used to legitimize a relationship between two people of the same sex.  In Thailand, there is no “civil union” mechanism for providing legal protection for a same sex couple. That being said, Thailand marriage registration is often not a method employed by a couple who wishes to have an ongoing relationship. It is quite common in Thailand for a couple to have a marriage ceremony (customary or religious), but never actually register a marriage in Thailand with the local Amphur office (District Office). Therefore, as a practical matter Thai same sex couples can maintain a domestic relationship in a manner similar to different sex couples who choose not to legalize their union.

At the present time there does not appear to be any political movement to legalize same sex marriage in Thailand. For those who wish to protect their same sex loved one, legal mechanisms such as a Thai will can assist in providing legal benefits usually accorded to those in a different sex relationship.

For more information please see: Bangkok Lawyer, or Visa Lawyer Thailand.

(Please note that the information contained herein is intended for educational purposes only. No lawyer-client relationship is created by reading this piece.)

Tags: Civil Union, Defense of Marriage Act, DOMA, Marriage Registration Thailand, Same Sex Marriage, Same Sex Marriage Thailand, Thai Will, Thailand Marriage Registration, uafa, Uniting American Families Act
Posted in Thailand Business | No Comments »

It would appear that although repeal of the Defense of Marriage Act (DOMA) may not be happening anytime during the current legislative session. For same sex partners of United States Citizens, there may be hope that United States Federal Immigration Law could be modified in order to allow for United States immigration benefits for Lesbian, Gay, Bi-sexual, and Trans-gender (LGBT) Couples.

Under the current laws on the books, embodied in the United States Immigration and Nationality Act (INA), Bi-national LGBT couples are precluded from obtaining immigration benefits based upon their relationship. Therefore, the same sex partner of an American Citizen cannot obtain United States Lawful Permanent Resident (Green card) status based upon their relationship in the same way that foreign spouse or fiance could. It would appear that this situation may soon change.

According to CBS News:

“[M]ore than 100 lawmakers in the House and about 20 in the Senate have signed onto bills that would add the United States to the 19 countries that already recognize same-sex couples for immigration purposes.”

Comprehensive Immigration Reform (CIR) is currently being considered in both the United States House of Representatives and the United States Senate. Many lawmakers are hoping to amend the currently pending bills with proposed amendments to correct the immigration injustice being perpetrated against bi-national same-sex couples. However, the proposed amendments to this legislation do not come without challengers, further from CBS News:

“The long-standing fight over the country’s estimated 36,000 same sex couples of two nationalities is a small but emotional part of the debate over immigration reform. But including same-sex couples in the mix could make it harder to pass an immigration overhaul. A key ally in past immigration fights, the U.S. Conference of Catholic Bishops, said it would not support a measure that has a same-sex provision.”

United States Representative Mike Honda is a supporter of the legislation aimed at ameliorating same-sex discrepancies in Immigration law. The so-called Re-Uniting American Families Act is similar to previous legislation known as the Uniting American Families Act (UAFA). In both proposals, an addition of the term “permanent partner,” will be made to the United States INA which will allow for a circumvention of the restrictions placed upon same sex couples under current federal law (DOMA).

President Obama has signaled his wish that some sort of US Immigration category be created that would allow same-sex couples to have benefits similar to different sex couples. There are questions among same-sex civil rights groups regarding just how much the President really supports their cause as the outcome of the same-sex immigration debate remains in doubt.

(This post is not legal advice. Contact a Licensed professional for legal advice. No lawyer-client relationship is created between the writer and any reader of this article.)

Tags: Defense of Marriage Act, gay immigration, gay visa, Immigration Equality, lgbt immigration, lgbt visa, Reuniting American Families Act, same sex visa, Uniting American Families Act
Posted in US Visa and Immigration, US Visa Thailand | No Comments »

Massachusetts  fired the opening salvo in what appears to be a major battle for same sex immigration rights. The Commonwealth is suing the Federal government of the United States. Specifically repugnant to the Commonwealth of Massachusetts is the so-called Defense of Marriage Act.  The first pillar of the case brought against the USA is based upon the idea that the provisions of the Defense of Marriage Act (DOMA) deny those same sex couples married in the Commonwealth the “essential rights and protections” accorded to different sex couples.

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.)

Tags: Defense of Marriage Act, DOMA, gay marriage visa, gay us immigration, gay visa, Same Sex Immigration, Same Sex Marriage, same sex visa
Posted in Upcoming Legislation, US Visa and Immigration | No Comments »

Conflict of Laws and the Uniting of American Families Act

A controversial and important issue with regard to US Immigration law and policy is the Uniting of American Families Act which would confer family immigration benefits upon same-sex couples. However, a question that many people ask me is: can I get a fiance or marriage visa for a same sex partner if we plan to marry, or have already executed a marriage, in a state that allows same sex marriage, domestic partnerships, or civil unions? At the time of this writing, the short answer to this question is: under current law, NO.

State recognized same-sex marriages and civil unions represents one of the biggest conflict of laws issue in America today. With regard to same-sex marriage issues within the USA, the issue has been raised as to whether a state that does not allow same sex marriage or does not recognize same sex marriage can grant a divorce of a same sex couple. This issue has not been fully explored and no policy or legal principle has been set in stone.

In the realm of US Immigration, the issue is more clear cut, but no less confusing for the layman. Under the Defense of Marriage Act, the US Congress made the following laws:

1. No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
2. The United States federal government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.

This means that even though a same-sex marriage is properly executed in a state and recognized by a state government, it will not be recognized as such by the US government. American Immigration law is a body of jurisprudence that is wholly federal law, so even though a marriage is properly conducted and recognized by a state, the provisions of the Defense of Marriage Act precludes the Federal government, in the form of the United States Citizenship and Immigration Service (USCIS), from conferring immigration benefits if based upon the underlying marriage, or intention to marry (however legally binding same sex marriage at the state level may be).

The Uniting of American Families Act is a rather clever piece of legislation because it circumvents the Defense of Marriage Act (DOMA) by creating a whole new visa category under the US Immigration and Nationality Act. In its current form, the UAFA would allow “permanent partners,” the right to US Immigration benefits. This means that an alien permanent partner would be entitled to a visa like a CR-1 or IR-1 in which permanent residence in the USA could ultimately be secured.

It is the authors opinion that proving up the bona fides of the relationship when applying for a “permanent partner” visa will be more difficult than in different-sex relationship cases, because both USCIS and the consular post will be more heavily scrutizing these applications because they coule be used to defraud the government for US Immigration benefits. In a way, the permanent partner visa would be something akin to a hybrid visa like a K1 fiance visa. That being said, if and when the UAFA passes, it will be a major step toward equal rights of same sex bi-national couples.

(This information is intended for academic purposes only and should not be used to make legal deciions without consulting a licensed attorney in your jurisdiction. No attorney client privilege, express or implied, is created between the author and reader of this content.)

Tags: Defense of Marriage Act, DOMA, gay marriage visa, same sex visa, uafa, uniting of american families act, US Immigration Law, US Visa Thailand
Posted in Fiance Visa Thailand, K1 Visa Thailand, US Visa and Immigration, US Visa Thailand | No Comments »