The Supreme Court will rule this June on the constitutionality of the Defense of Marriage Act and whether or not the federal government must recognize same-sex marriages. Immigration law is federal and the U.S. Citizenship and Immigration Services and State Department are federal agencies that can grant greencards and immigrant visas to spouses of U.S. Citizens. If DOMA is struck down members of same-sex bi-national couples may be eligible for greencards.
1. If DOMA is struck down can my spouse or partner come to the U.S. on a visitor’s visa to get married and apply for a greencard?
I hear this question a lot, from both straight and gay couples. The B-2 visitor’s visa is a non-immigrant visa. This means that the applicant does not intend to immigrate to the U.S. but only visit for a period of time. If one enters on a visitor’s visa with the intent to marry and apply for a greencard, they are violating the terms of that visa. Violating immigration regulations can cause problems when it comes to adjusting status and in some cases can place an individual in deportation proceedings. Spouses and partners must apply for fiancé or marriage-based immigrant visas if their intention is to obtain a greencard. If the individual is already in the U.S. on a visitor’s visa after DOMA is struck down, they may be able to adjust their status. It is okay for one to change their mind about immigrating to the U.S. but the original intent should be only to visit. This is how the system currently works for heterosexual couples and it will likely be the same if DOMA is struck down and same-sex relationships are recognized for immigration purposes.
2. If DOMA is struck down will same-sex couples immediately be able to apply for greencards?
The answer to this question is not yet clear. However, I believe the answer is likely to be yes. There are no immigration laws that prohibit same-sex couples from requesting and obtaining greencards. The only law that prevents same-sex marriage-based greencards is the Defense of Marriage Act. If the Act is ruled unconstitutional then the U.S. Citizenship and Immigration Service would have no valid argument to deny an otherwise eligible member of a same-sex couple with a valid marriage license from obtaining the immigration benefit.
3. If DOMA is struck down and I am already married in Canada do we have to marry again in the U.S.?
In most cases, the U.S. Citizenship and Immigration Services will recognize marriages that are legal in the jurisdiction in which they took place. If the same-sex marriage is legally recognized in Canada, it is likely that it will be legally recognized by the U.S. CIS after DOMA and the couple will not have to remarry in the U.S. but will need to provide a copy of the Canadian marriage certificate.
4. Can I file my greencard application now before DOMA is struck down?
As same-sex marriages are not currently recognized by the U.S. Citizenship and Immigration Services, your application might be rejected and you might lose your filing fees. You could prepare your case to file as soon as DOMA is struck down.
5. My husband is undocumented will he be able to get a greencard if DOMA is struck down?
Unfortunately, the end of DOMA may not be a cure for all same-sex couples. Individuals who entered the country without authorization are prohibited from adjusting their status even with a federally recognized marriage to a U.S. Citizen, unless they have an immigration petition that was filed for them before April 30th 2001 or their U.S. Citizen spouse is in active military. In this case the foreign spouse would need to leave the U.S. and apply for a marriage-based immigrant visa at the U.S. Consulate in their home country. However, under current immigration laws, one year of unlawful presence leads to a 10 year bar to reentry. A waiver of the bar requires a showing of extreme and unusual hardship to the U.S. Citizen Spouse or Parent. This may change if comprehensive immigration reform passes.
DISCLAIMER: The above responses are general in nature and do not constitute legal advice. Each case is different. Speak with an immigration attorney about your case before taking any action. Immigration Lawyer Andre Olivie helps gay couples nation-wide with their immigration needs. Contact Andre to schedule a consultation.