Integrity Legal

2nd Feb 2010

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.”

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