In Defense of (Same-Sex) Marriage – How DOMA Separates Binational Families and Why it Must be Abolished

 
By Joseph J. Shepherd, Esq.

 
Under current federal immigration law and policy, same-sex binational couples who are married or want to get married face widespread discrimination, uncertainty, and a plethora of limitations and complications surrounding their ability to lawfully stay together in the U.S..  This article clarifies the ambiguities, highlights the important signposts along the way and provides tangible direction for ending the anti-gay and anti-lesbian biases wrought into U.S. immigration law by the Defense of Marriage Act (“DOMA”).

Marriages between two men or two women are legal and validly performed in ten countries around the world, including Argentina, Belgium, Norway, Portugal, Canada, Iceland, Netherlands, Spain, South Africa and Sweden; in six U.S. states, including Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont; and in two North American capital districts, including Mexico City, Mexico and Washington, D.C., United States.  Absent strong public policy grounds to the contrary or bad faith, the longstanding rule for recognizing marriages for U.S. immigration purposes has been the lex loci celebrationis rule, i.e., the validity of a marriage is determined according to the “law of the place of celebration.”  See In re Gamero, 14 I. & N. Dec. 674 (B.I.A.1974).  However, U.S. immigration officials will not approve an immigrant petition filed by a U.S. citizen for a same-sex spouse, even when accompanied by ample evidence establishing the marriage is in good faith and was validly entered into in one of the above jurisdictions.  Furthermore, same-sex marriages are not recognized for purposes of obtaining derivative spouse benefits for nonimmigrant visa statuses, such as the ability to obtain an H-4 derivative visa for a same-sex spouse of an H-1B nonimmigrant.

The reason for this is DOMA, Pub. L. 104-199, 100 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7 (1997), which, for federal purposes, including federal immigration law, defines ‘marriage’ as between “one man and one woman” and defines ‘spouse’ as either a husband or wife “of the opposite sex.”  Civil unions, domestic partnerships and other forms of domestic relationships commonly entered into in some jurisdictions are also not recognized for immigrant petition purposes as the Immigration & Nationality Act (“INA”) only recognizes married couples, and under DOMA only opposite-sex couples are recognized as married.  But see Matter of Dorman, 25 I&N Dec. 485 (A.G. 2011) (Attorney General vacated a BIA decision that held a gay man’s same-sex partner did not qualify as a “spouse” for Cancellation of Removal purposes and remanded to the BIA to consider whether, in part, absent DOMA, his same-sex partnership or civil union would qualify him to be considered a “spouse” under the INA).  While the Obama Administration has stated it will no longer defend the constitutionality of DOMA in federal court, and has specifically argued in federal court that DOMA is unconstitutional, the Administration continues to enforce its provisions until the law is eventually struck down or repealed in Congress.

So, is it possible for married same-sex binational couples to lawfully stay together in the U.S. when their marriages are not recognized as a basis for an immigrant petition? The answer is, “it depends.”  According to a recent study by UCLA’s Williams Institute, there are currently an estimated 28,500 same-sex binational couples living in the U.S. where one party is a U.S. citizen and an additional 11,500 same-sex couples where neither party is a U.S. citizen.  These numbers suggest that at least some married same-sex binational couples have found a way to lawfully stay together in the U.S.

One of the biggest issues that arise when a foreign national same-sex spouse (or partner) of a U.S. citizen visits the U.S. from abroad is that of “immigrant intent,” i.e., the intent to remain in the U.S. permanently.  The INA states that “[e]very alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status.”  INA § 214(b).  For example, foreign nationals visiting the U.S. on B-1/2 business/pleasure visas, F-1 student visas, J-1 exchange/training visas or through the visa waiver program must establish to the satisfaction of U.S. immigration officials prior to entry that they do not have immigrant intent.  Generally, having a spouse or partner currently living in the U.S., regardless of their sex, is a big red flag to immigration officials that the foreign visitor may intend to stay in the U.S permanently.  While this presumption is not impossible to overcome, the challenge remains daunting for married same-sex binational couples, many of whom are forced to prove they intend to reside in the country of the non-U.S. citizen, or in a third country.

Some married same-sex binational couples are able to lawfully stay together in the U.S. when the foreign spouse acquires authorization to be here through means other than an immigrant petition filed by their spouse.  There are certain nonimmigrant visas, i.e., “dual intent” visas, that may permit a foreign national to enter the U.S. even if they have immigrant intent.  For example, a foreign national same-sex spouse may qualify to be in the U.S. (and concurrently intend to remain in the U.S. permanently with their U.S. citizen spouse) in one of the following nonimmigrant classifications: the H-1B specialty occupation worker visa (extendable up to 6 years), the L-1 intracompany transferee visa (extendable to between 5-7 years), the O-1 extraordinary ability visa (extendable indefinitely), the P-1 internationally recognized athlete and entertainer visa (extendable up to ten years) or the E-1/2 treaty trader/investor visa (extendable indefinitely).  Fortunately, many foreign national same-sex spouses have been able to acquire a green card to stay in the U.S. permanently through employment-based immigrant petitions, investment-based immigrant petitions, family-based immigrant petitions filed by a relative other than the same-sex spouse, applications for asylum or through the green card lottery.  In addition, when both spouses are foreign nationals, and one spouse comes to the U.S. on a certain type of nonimmigrant visa, the other spouse may qualify to travel to the U.S. with his or her spouse in lawful B-2 status instead of the corresponding derivative category, or may qualify individually for their own nonimmigrant classification.

While there are options for some married same-sex binational couples to lawfully stay together in the U.S., the sad truth is many more families are torn apart.  By being denied the ability to file an immigrant petition for the foreign national spouse, many same-sex couples are forced to choose between leaving the U.S. altogether, living apart from each other, or facing the risk of the foreign national spouse being apprehended and deported.  While there have been recent and important advances in halting the deportations of some foreign national same-sex spouses of U.S. citizens through favorable exercises of prosecutorial discretion by U.S. immigration officials, the fact remains that married same-sex binational couples and their families continue to suffer because of DOMA.  To be sure, the administrative closure of removal proceedings initiated against the foreign national same-sex spouse of a U.S. citizen is a milestone in the recognition of civil immigration rights for LGBT people.  Sadly, these favorable exercises of prosecutorial discretion, including grants of deferred action, do not confer or provide any valid immigration status.  Persons whose removal proceedings have been administratively closed or who have received a grant of deferred action, while temporarily absolved of the immediate fear and pain of forced separation, must still live in constant trepidation that U.S. immigration officials will someday reinstate removal proceedings against them.

Unless and until DOMA is struck down, repealed or other changes to the law occur, U.S. immigration officials will not approve a marriage-based immigrant petition filed for a same-sex spouse.  The good news is that are many pending challenges to DOMA, both in court and in Congress.  A federal court challenge to DOMA in the immigration context here in California has not yet been successful due mostly to Ninth Circuit precedent, i.e. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982).  It is  widely debated whether a constitutional challenge to DOMA in the immigration context could even prevail.  Either way, as long as DOMA remains law, married same-sex binational couples and their families who want to lawfully stay together in the U.S. need to plan very carefully so as to avoid the unnecessary risks of, and consequences associated with, being denied a visa, being denied entry into the U.S., or being subject to apprehension and/or deportation by U.S. immigration officials.

It is time for our great nation to move forward with this basic human rights issue and end DOMA once and for all.