Integrity Legal

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 »

On June 3rd the United States Senate held hearings on the Uniting American Families Act for the first time. This was a historic event because it marked the first time in history that the Senate held hearing regarding Same-Sex Family Immigration matters.

For those unfamiliar with the UAFA, it is a bill that would add the term “Permanent Partner” to the list of those eligible for US Immigration benefits based upon a family relationship. Under the Defense of Marriage Act, the Federal government only recognizes marriage between a man and a woman. The UAFA creates a new category of family member, namely: Permanent Partners.

A note of importance, the President of AILA , The American Immigration Lawyers Association, submitted a statement to the committee supporting the enactment of the Uniting of American Families Act. An interesting quote from the statement:

“[S]ame sex partners of U.S. citizens and legal permanent residents are not recognized as family members under current immigration law, no matter how long-term or committed the relationship. This outdated and biased definition forces U.S. citizens and legal permanent residents to make unconscionable, life-altering decisions to either relocate to a foreign country or permanently separate from their loved ones.”

The hearing was punctuated by the heart wrenching story of an immigrant partner who was taken away by US Immigration officers and deported in full view of her partner and family members in the USA.  The witness said on the record, “I was put into a van with two men in yellow jump suits and chains and searched like a criminal, in a way I have only seen in movies.”

On a related topic, the American State Department recently changed internal rules in order to allow same-sex partners of State Department employees the same rights as different sex couples. US Secretary of State was quoted as saying such rule changes were the “right thing to do.”

Current Immigration law still does not allow American Immigration benefits for same sex loved ones of American Citizens, but the above changes in guidelines and proposed enactments would greatly equalize immigration law to the benefit of same sex couples. It should be noted that this proposed legislation would have no effect on the Defense of Marriage Act, nor would it have any effect with regard to gay marriage. Instead, it would grant immigration benefits to persons previously not qualified to receive them.

(Nothing contained herein is to be construed as legal advice. No lawyer/client relationship is created by reading this post)

Tags: AILA, gay immigration, gay us visa, gay visa, lgbt immigration, same sex, Same Sex Marriage, same sex visa, uafa, Uniting American Families Act, US Visa Thailand
Posted in General Legal Information, Upcoming Legislation, US Visa and Immigration, US Visa Thailand | No Comments »

The American State Department, as of May 24th, has begun offering benefits to same sex partners of American diplomats and State Department employees. This comes after many years of the US State Department refusing to grant benefits to same sex partners and spouses. The justification that the state department previously used was based upon the Defense of Marriage Act. State Department officials often sighted DOMA claiming that it precluded allowing benefits for same sex partners.

The current move made by the State Department signals a major shift in state department policy on the issue of same sex domestic issues. Of great import is the fact that among other benefits, same sex partners will be issued diplomatic passports along with their diplomat partner or spouse.

In a State Department memo circulated pursuant to this regulatory change Secretary of State Hilary Rodham Clinton hinted that this change was overdue. Secretary Clinton stated, “At bottom, the department will provide these benefits for both opposite-sex and same-sex partners because it is the right thing to do,”

This begs the question that if, at bottom, these benefits ought to be conferred because “it is the right thing to do,” then isn’t granting same sex couple’s US Family Immigration benefits the right thing to do as well? The Uniting of American Families Act is a piece of legislation that would allow US citizens to obtain US visas for their alien same sex partner.

In this situation, the US State Department has disregarded the spirit of the Defense of Marriage Act by conferring these benefits upon same sex partners and will likely prevail in doing so because offering these benefits is a prerogative of the Secretary of State and under the bailiwick of the executive branch of the United States government (Under the doctrine of Separation of Powers, there are certain areas in which each branch of government cannot be challenged by another branch).

The UAFA also subtly avoids the restrictions imposed by the Defense of Marriage Act by creating a new category of US Visa under the United States Immigration an Nationality Act. This new visa category would allow an alien to obtain a US visa based upon family relationship if the meet the definition of “permanent partner.”

As we have previously stated on this blog, the US Immigration implictions of the enactment of the Uniting of American Families Act would be a watershed for Same Sex immigration rights as well as a very interesting case study in conflict of laws.

For more information on US Immigration from Thailand Please see:

K1 Visa Thailand

Fiance Visa Thailand

K3 Visa Thailand

(Please note that the information contained herein is for educational purposes only and should not be used as a substitute for legal advice. No lawyer client relationship is formed between author and reader).

Tags: gay visa, lgbt visa, permanent partner visa, same sex visa, uafa, Uniting American Families Act
Posted in General Legal Information, Legal Opinion, Miscellaneous, Upcoming Legislation, US Visa and Immigration | No Comments »

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

The most important aspect of this legislation is the addition of the term “permanent partner,” to current Immigration law. Under the proposed legislation proving permanent partnership would be defined as someone who:

(A) is in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment;

(B) is financially interdependent with that other individual;

(C) is not married to or in a permanent partnership with anyone other than that other individual;

(D) is unable to contract with that other individual a marriage cognizable under this Act; and

(E) is not a first, second, or third degree blood relation of that other individual.

...with liberty and justice for ALL

In my opinion, these “permanent partner” visas will require a great deal more evidence to prove a relationship than a conventional marriage visa, but at the same time it could closely resemble the K1 Fiance Visa in that, the K1 is a visa not based upon a marriage but an underlying bona fide relationship between the petitioner and the beneficiary.  After the sweeping election of Democrats in November there is a better chance than ever that this legislation will pass, but in order to get this through it may still require pressure being brought to bear on local Congressmen and Senators. So if this is an issue for you or someone you know, then call your local representative and tell them to vote for the Uniting of American Families Act.

Should this legislation be passed it would be a major victory for the LGBT Immigration movement. For more information please visit the following sites:

Immigration Equality

UAFA on Wikipedia

LGBT Immigration Rights

Tags: Gay Rights, gay us immigration, gay visa, LGBT US Visa, permanent partner, Same Sex Marriage, same sex visa, uafa
Posted in General Legal Information, Miscellaneous, Upcoming Legislation, US Visa and Immigration | 3 Comments »