Integrity Legal

1st Jul 2009

President Obama has recently been criticized by many members of the LGBT community for what appears to be a reversal of his campaign stance on same-sex rights.  Presently President Obama’s Justice Department is defending the Defense of Marriage Act (DOMA) in the US courts. However, President Obama has made statements claiming that while his administration is in the process of enforcing the provisions of DOMA, he is also working to have the law repealed. Apparently, President Obama is trying to apply pressure to Congress in order to make them repeal the Defense of Marriage Act. Mr. Obama was quoted in a speech as saying:

“I’ve called on Congress to repeal the so-called Defense of Marriage Act to help end discrimination against same-sex couples in this country. Now, I want to add we have a duty to uphold existing law, but I believe we must do so in a way that does not exacerbate old divides. And fulfilling this duty in upholding the law in no way lessens my commitment to reversing this law.”

What are the Consequences on US Immigration if the Defense of Marriage Act is Repealed?

Should the Defense of Marriage Act be repealed, the upshot would be that the Federal government would recognize same-sex marriage. Therefore, US Immigration benefits would likely be conferred based upon a marital relationship. Thus, if a same sex couple enters into a valid marriage in a country like Belgium, then they could file an I-130 petition for a CR-1 visa based upon their relationship (under this hypothetical scenario, they could also file a supplemental visa application for a K3 visa).

In another hypothetical situation, the same couple are now unmarried, but they have a bona fide relationship and intend to marry in the United States in a jurisdiction that allows and recognizes same sex marriage (Massachusetts for example). This factual situation would likely allow that couple to file a visa application for a K-1 visa because the parties would meet the legal requirements imposed upon those wishing to obtain a US visa for a fiance.

It is currently uncertain whether Obama will successfully lead the charge to repeal the Defense of Marriage Act. What is certain is the fact that should the Defense of Marriage Act be repealed it will have a major impact on United States law and a crucial impact upon same sex immigration rights. If Obama is successful in repealing DOMA the upshot will likely be that the Uniting American Families Act (UAFA) will be rendered superfluous because same sex marriage would be included in the umbrella term “marriage” under current US Immigration law.

(Please not that the above information is for eductaional purposes only. No attorney-client relationship shall be inferred to be formed between the author and any readers of this post.)

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