Integrity Legal

16th May 2009

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.)

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