Integrity Legal

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.

Tags: CR-1 Visa, CR1 Visa, Fiance Visa, IR-1 Visa, IR1 Visa, K-1 Visa, K1 Visa, lgbt visa, Same Sex CR1 Visa, Same Sex IR1 Visa, Same Sex K1 visa, Same Sex Marriage, Same Sex Marriage Thailand, same sex marriage Vietnam, US visa same sex, USA visa same sex
Posted in Adjustment of Status, CR1 Visa, Fiance Visa Thailand, IR1 Visa, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, K2 Visa, K2 Visa Thailand, K3 Visa, same sex visa, US Visa, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »

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.

Tags: gay fiance visa, LGBT fiance visa, LGBT marriage Thailand, marriage in Thailand, same sex civil union Thailand, same sex fiance visa, Same Sex Marriage, Same Sex Marriage Thailand, same sex marriage visa, same sex visa Thailand
Posted in same sex visa, Thailand Legal News | No Comments »

Since the relatively recent decision from the United States Supreme Court known colloquially as the Windsor decision, there have been a few lingering questions from members of the LGBT community regarding the United States immigration options now available for same sex couples.

Due to section 3 of the Defense of Marriage Act (DOMA) in the past it was not possible for same sex married couples (even those with a valid marriage in one of those American jurisdictions permitting same sex marriage) to receive federal benefits based upon their marriages. This lack of federal recognition precluded the possibility of a United States Citizen or Lawful Permanent Resident sponsoring a foreign spouse or fiance for a US marriage visa or a US fiance visa. With the high Court’s pronouncement that same sex marriage should be accorded the same recognition as different sex marriage this all changed.

Section 3 of DOMA reads as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

From the moment the Supreme Court ruled this section unConstitutional, the Federal government was instantly required to allot the same benefits to lawfully married same sex and LGBT couples as would be allotted to different sex couples in similar circumstances. What does this mean from an immigration standpoint? LGBT and same sex couples are now permitted to petition and apply for the same types of visas as their different sex counterparts. Therefore, a couple of the same sex who is already married in the U.S. or a foreign jurisdiction recognizing such unions may now apply for a U.S. marriage visa such as the CR1 visa, the IR1 visa, or the K3 visa. Furthermore, the United States Citizenship and Immigration Service (USCIS) has made it clear that they will also adjudicate K1 Visa petitions (petitions for immigration benefits for foreign fiances of U.S. Citizens) for same sex couples in the same way that such petitions are adjudicated for different sex couples.

The Catch Section 2

One issue that has been of concern for experts studying this issue is the practical impact of the Court’s seeming unwillingness to speak to the issue of the Constitutionality of Section 2 of DOMA. Section 2 of DOMA reads as follows:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

The fact that Section 2 of DOMA has not been overturned means that same sex couples may NOT receive the same STATE benefits as their different sex counterparts depending upon the local laws of the couples’ State of residence and notwithstanding the fact that the couple may have a perfectly legal marriage in one of those U.S. jurisdictions allowing such marriages. An example of how this could work in a practical sense would be a situation where the same sex couple is married legally in one state, but resides in a state which forbids same sex unions, a spouse having state retirement benefits may not be able to fully pass on their retirement benefits to their same sex spouse. How would this work in an immigration context? USCIS and the Department of State have already issued answers to a series of frequently asked questions regarding LGBT immigration. On the question of US fiance visas, the USCIS as well as the State Department have noted that so long as the couple has a bona fide intention to celebrate their marriage in one of those states which permit such unions then the immigration petition and application will be adjudicated no differently than a similarly situation petition or application for a different-sex couple.

One issue which may be concerning for same sex partners in the Kingdom of Thailand arises from the fact that, at present, same sex marriage is not legal under Thai law and therefore authorities in Thailand will not register a marriage to two people of the same sex. That stated, there is currently legislation being drafted to allow same sex marriage in Thailand. However, as of the time of this writing it is not clear whether the Thai government will ultimately pass said legislation. As there is not another jurisdiction in the region which recognizes same sex unions, it may not be feasible for same sex partners to marry prior to submitting a US marriage visa petition. This leaves many same sex Thai-American couples in a position where their only option is to apply for a K-1 fiance visa and marry in the United States.

For related information, please see: K1 Visa Thailand.

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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
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