Integrity Legal

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
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The Path to Citizenship for Undocumented Aliens

Earlier this month President Barack Obama spoke with the President of Mexico about the issue of providing a path to citizenship for undocumented aliens in the United States. The call for comprehensive immigration reform has been brought up a great deal during the new President’s fledgling term. It is an issue that ignites passions on both sides of the aisle particularly in an economy environment in a state of decline. There is something to be said for the idea that an amnesty needs to be called to get undocumented aliens “out of the shadows,” even if a recession is threatening the jobs of American Citizens. The other side of the coin is the idea that illegal immigrants are exactly what their name implies: “illegal,” and should not in the end be rewarded for circumventing or outright violating Immigration regulations.

Many believe that the notion of America as a nation of immigrants and a melting pot of different cultures should compel the US government to make some sort of provision for granting some sort of legal status to currently undocumented aliens. Admittedly, this argument holds some merit particularly where the undocumented alien is working in the US and is not a burden to the state.

Family Immigration and Visas for Same Sex Couples

Concurrently with Comprehensive Immigration Reform there is another bill in the US Congress seeking to give another form of prospective Immigrants legal status in the United States that they do not currently retain. The Uniting of American Families Act (UAFA) seeks to add the term “permanent partner,” to the list of those eligible for US Family Immigration Benefits under US Immigration regulations.

Under the Defense of Marriage Act a marriage is recognized as a legal union between a man and a woman. Therefore, this act effectively bars same sex couples from receiving US federal recognition for a marriage (including in US states where same sex marriages and civil unions are legal). The upshot of this legislation is that it precludes same sex couples from obtaining US Immigration benefits if one of the partners is a foreign national.  The addition of  the new term “permanent partner,”  to the American Immigration and Nationality Act would allow same sex marriage and family visas without creating a legal conflict with the Defense of Marriage Act.

A New Category of Visa to be created under the UAFA?

Some lawyers and legal scholars have speculated as to what type of family visa a permanent partner would be entitled to. The term itself would seem to rule out the K1 visa because it is a fiancee visa and the use of the word “permanent” contradicts the idea of a fiance visa. At the same time, because the term specifically does not connote “marriage,” it would seem likely that a us marriage visa would be out of the question. Therefore, a “permanent partner” visa will likely be a separate category unto itself that is distinct from other family visa categories. It remains to be seen what the burden of proof will be for obtaining a “permanent partner” visa, but the fact that marriage will not be a legally recognized element for proving the relationship (at least with the Defense of Marriage Act on the books), it is likely that a large amount of evidence will be needed to prove up the bona fides of a permanent partnership.

Both Comprehensive Immigration Reform and the UAFA are necessary steps to dealing with the practical effect of immigration regulations that cause certain groups to “fall through the cracks,” of American Immigration law. However the debate on these issues is resolved, a modicum of uniformity and resolution of these matters is necessary.

Thanks for reading,

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Tags: American Visa Thailand, gay marriage visa, gay us immigration, gay us visa, path to citizenship, Same Sex Marriage, same sex visa, uafa, uniting of american families act
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