Immigration Based on Same-Sex Marriages: Rapid Changes and Widespread Confusion

In the past ten years, the cultural acceptance of same-sex relationships in the United States has increased greatly. What was once a fringe idea has now become a more frequent topic of debate. At the time of this writing, five states and the District of Columbia, issue marriage licenses to same-sex couples. Hurdles still remain, however, in terms of immigration benefits for same-sex spouses. Recent developments have brought this matter to the forefront, yet again. This update on this evolving topic is for the benefit of MurthyDotCom and MurthyBulletin readers.

Background: Defense of Marriage Act

At the present time, same sex couples wishing to marry in the United States can obtain licenses in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia. Same-sex marriage is also recognized in a number of other countries, including Canada, Spain, Belgium, Norway, Sweden, Iceland, Portugal, Argentina, South Africa, and the Netherlands. For more than fifteen years, U.S. immigration policy toward same-sex relationships has been governed by the federal Defense of Marriage Act (DOMA). Section 3 of the DOMA mandates that the only definition of marriage that will be accepted under federal law is between one man and one woman. DOMA was passed by Congress in 1996.

As a result of DOMA, the agencies charged with enforcing U.S. immigration laws have long stated that they were forbidden from granting immigration benefits based upon same-sex marriages. Historically, any relative petition (Form I-130) filed by a U.S. citizen or green card holder on behalf of his/her same-sex spouse would be rejected or denied by U.S. Citizenship and Immigration Services (USCIS) and Legacy INS, as a matter of established policy. This would hold true even if the couple had legally married in a state in the United Stares or a foreign country legally permitting the same-sex marriage. Likewise, the same-sex spousal relationship would not be recognized in any claims to immigration relief based upon hardship to one’s spouse. This typically arises in connection with certain waivers and relief in removal (deportation) proceedings.

DOJ’s Revised Position Gives Some Hope to Same-Sex Couples

As a result of DOMA, the immigration outlook for same-sex spouses in the United States was bleak for years. A major shift occurred, however, on February 23, 2011, when U.S. Attorney General Eric Holder issued a ground-breaking press release regarding the DOMA.

Attorney General Holder announced that, after consultation with President Obama, the U.S. Department of Justice (DOJ) had changed its position in regard to certain provisions of the DOMA. The DOJ now has decided that the DOMA, as it applies to federal recognition of same-sex marriages, is unconstitutional because it unfairly discriminates based on sexual orientation. As a result, DOJ attorneys will no longer defend the constitutionality of the DOMA in Federal Court, making it possible for federal court challenges against the DOMA to meet with success. (Even if DOJ attorneys no longer argue in favor of DOMA in federal court, however, it is possible that private parties or organizations, or members of Congress, may be permitted to do so.)

No Immediate Eligibility under U.S. Immigration Law

The DOJ’s changed position with regard to the DOMA does not mean that there is an immediate change under U.S. immigration law regarding recognition of same-sex marriages. Rather, as Attorney General Holder made clear in his statement, “[s]ection 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes down the law, and the President has informed me that the Executive Branch will continue to enforce the law.” In other words, DOMA is still the law until it is ruled judicially as being unconstitutional or Congress repeals it. This is unlikely, given the current balance of power in the U.S. Congress.

Despite the fact that DOMA is still binding law in regard to immigration decisions, there have been some signs that many people within the immigration agencies do not believe that DOMA will be the law of the land for much longer. For a brief period at the end of March 2011, USCIS district offices were placing I-130 petitions filed by same-sex couples in abeyance (meaning “on hold”) rather than rejecting or denying them, as they would have done in the past. This was due to the uncertainty over the constitutionality of DOMA. In other words, rather than rejecting the petitions or denying them outright, the agency was accepting the petitions and holding them, pending further guidance from USCIS headquarters.

USCIS Rejects or Denies I-130s Filed by Same-Sex Partners

Any celebration over the USCIS change in position regarding I-130s filed for same-sex spouses is too early. After less than a week of the abeyance policy, the USCIS announced that the policy regarding same-sex marriage had not changed at the USCIS, and that petitions filed by same-sex partners were, once again, being routinely rejected or denied. Despite this setback, it is apparent that USCIS policy regarding same-sex marriages is in flux and that at least some of the powers-that-be anticipate a reversal of Section 3 of DOMA.

Federal Law and Appeals Courts

The outlook regarding immigration benefits for same-sex partners is extremely fluid at this time. It is possible that changes in the law may not be uniform throughout the country. While immigration law is federal, appeals courts have jurisdiction over geographic districts. It is possible that federal courts in some parts of the United States may overturn the law, while courts in other areas may uphold it. This type of split on such a significant issue, ultimately, could be settled by the U.S. Supreme Court.

Under still-existing policy, an application filed for a same-sex spouse most likely will be rejected or denied by the USCIS. If the beneficiary of that petition is not in valid immigration status, and is not eligible for some other form of relief, this may result in the initiation of removal (deportation) proceedings against the individual. So, unless there is some compelling reason to file immediately, it may prove prudent to wait until there is an official change in policy. There will be some same-sex spouses who are willing to take the risk of filing inevitable denial, so that they can try to challenge the law and create change. There will be others who are already in removal proceedings with limited options who may chose to have their same-sex spouses file the I-130 petition, and appeal the denial as far as possible.

Conclusion

The law in this area is to evolving. A change would open avenues of relief for many same-sex couples who face difficult immigration challenges and barriers that do not exist for other married couples. For now, individuals should maintain separate immigration statuses, while waiting for – and working – toward the desired changes in the law. Continue to follow this issue on MurthyDotCom and in the MurthyBulletin, where we will provide updates on any significant developments.

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