Immigration Options for LGBT foreign Nationals and Their families Defense Of Marriage Act (DOMA) is Dead.
Immigration Options For
LGBT Foreign Nationals
And Their Families:
DOMA Is Dead.
David H. Nachman, Esq.,
Ludka Zimovcak, Esq.
Felicia Zeidman, Esq.
487 Goffle Road
Ridgewood, NJ 07450
IN GENERAL: Marriage recognition in the
Marriage recognition under federal immigration law:
• Valid where performed
• No bad faith
• Not contrary to public policy in state where
enacted in 1996 when no state permitted
same sex marriage
• Currently thirteen marriage equality states plus
• Section 3 of DOMA is only impediment to
applications for LPR status – 36,000 lesbian and
gay binational couples affected by DOMA
What is DOMA?
did DOMA do?
• U.S. Immigration laws and regulations operate at the Federal
• The interplay between state law protections and Federal
• “Firs –class” citizenship at the State level, but “Second-class”
citizenship at the Federal level
• What did Windsor do to DOMA?
• How will DOMA affect eligibility for U.S. immigration benefits?
United States V. Windsor
legitimate purpose overcomes DOMA’s purpose
and effect to disparage and to injure those whom
the State, by its marriage laws, sought to protect in
personhood and dignity.”
• Struck down Section 3 of DOMA, which defines
marriage as a union between a man and a woman
for purposes of all federal statutes and federal
agency regulations and rulings.
Death Of DOMA Opens Immigration
benefits and forms of relief dependent upon
Adjustment of Status (AOS) and consular processing (CP) based on
family based petition
AOS or CP based on being derivative of a beneficiary of visa petition
(family or employment)
Cancellation of removal requiring qualifying relative
Waivers that require qualifying relatives
Derivate beneficiary of asylum application
Derivate beneficiary of nonimmigrant visa
Immigration Benefits More Precisely
status (A through V)
• New “derivative” status for same-gender spouses of work
visa holders (H-1B, L-1, TN, etc.)
• “Derivative” status for spouses of students and exchange
visitors (F-1, M-1 and J-1)
• Work permits under E, L, and J status
• Green card options:
Lawfully married same-gender bi-national couple can enjoy right of
family-based immigration sponsorship
Same-gender spouses count as “immediate family” members
Place of celebration rule
• “Marriage Equality” countries = foreign jurisdictions where
same-gender marriage is recognized
• What about a state that doesn’t fully recognize same-sex
marriage or doesn’t actually call it “marriage” (such as civil
union or domestic partnership)?
• Validity of marriage determined by the law of the State where
the marriage was celebrated
• Couples do not have to live in marriage equality state in order
to apply for immigration benefits. See Matter of Lovo-Lara, 23
I&N Dec. 746 (BIA 2005); Matter of Zeleniak, 26 I&N Dec.
158 (BIA 2013).
Place of celebration rule
Fifteen countries: Argentina, Belgium, Brazil, Canada,
Denmark, France, Iceland, Netherlands, New
Zealand, Norway, Portugal, South Africa, Spain,
Sweden, Uruguay (plus England & Wales in 2014!)
Fourteen U.S. states: California, Connecticut,
Delaware, Iowa, Maine, Maryland, Massachusetts,
Minnesota, New Hampshire, New York, New Jersey,
Rhode Island, Vermont and Washington
Two North American capital districts: Mexico City
(Mexico), District of Columbia (U.S.)
What about Civil Unions?
FAQs indicates that agency will NOT recognize
civil unions as marriages at this time.
• Argue that agency should consider a civil union as
marriage. Foreign Affairs Manual (FAM) recognizes
common law marriages, but only if full legal
equivalent of marriage. 9 FAM 40.1 N1.2
Marriage fraud issues
marriages examined by USCIS to same
degree as different-sex marriages.
• INA 204(c): person found to have engaged in
marriage fraud barred from receiving a visa in
preference categories in future.
• Prior petition based on different-sex marriage will
raise suspicions. Note difference between fraud and
failure to establish bona fides.
Marriage fraud issues (Cont.)
noncitizen who seeks, has sought, or has procured any
benefit under INA by fraud or willful misrepresentation is
inadmissible. INA 212(a)(6)(c).
• Same-sex partners disadvantaged in past-relationships
recognized for purposes of finding immigrant intent under
INA 214(b) but not recognized for immigration benefits.
• Many couple not open in the past about their relationships
with DHS or DOS.
Financial sponsor for student visa – noted as friend rather than
husband or partner
Unclear how agencies will address this issue
Post DOMA Immigration Options?
that DOMA is dead, what options exist for
same-sex binational couples and their families?
Nonimmigrant visa options
Immigrant visa options
Applying for Benefits and Retroactivity.
apply for immigration benefits now.
• Previously denied applications (I-130s) – USCIS
reopening some cases.
• USCIS will reopen cases denied solely because of
DOMA after February 23, 2011, date DOJ stopped
defending DOMA in court.
• Anyone with denied I-130s despite date can email
USCIS at USCISemail@example.com to request
reopening. NO fee required.
PRE-DOMA: Nonimmigrant visa options
Foreign national partners of U.S. citizens
or permanent residents
Visa waiver program
Single intent visas (primary intent)
Dual intent visas
Must not violate nonimmigrant status
POST-DOMA: Nonimmigrant visa options
foreign national couples:
Spouse of F-1 or M-1 gets F-2 or M-2
Spouse of H-1B gets H-4
Spouse of L-1A gets L-2 visa
The B-2 visa for “cohabiting partners” of principal
6 month to 1 year initial status validity; extendable in 6 month
Both spouses qualify independently for their own visas
Consular Processing Concerns
spouse NOT in US can seek LPR status
through consular processing.
some countries, may create a threat to safety of
foreign national. Many countries criminalize
may want to request third country
POST-DOMA: Same-Gender Nonimmigrant
“derivative” visa status for same-gender
spouses of work-visa holders (H-1B, L-1, O-1, I, TN, E1, E-2, E-3, and others)
• If outside the U.S.: apply through filing DS-160 and
schedule consular interview
• Include marriage certificate
• What do I check on the form – “single” or “married”?
• What if I was married but previously checked
Work permits for same-gender spouse of
nonimmigrants in E, J, or L status
if the spouse of a J-1, E-1, E-2, E-3, or L-1
(both L-1A and L-1B)
• Apply for Employment Authorization Document (EAD)
card on Form I-765
• Approximately 3 month process
• Result: “open market” work permission
Methods For Filing For Immigrant Visas
Options for applying for Permanent Residence in the
U.S. based on marriage to a U.S. citizen
I-130 + CP
10 month minimum (10 outside U.S.)
I-130 + K-3 + AOS 13-15 month minimum (8-10 outside
K-1 + AOS
13-15 month minimum (8-10 outside
I-130 + AOS
5-7 month minimum
noncitizens outside United States, USC can file
fiance visa petition on his/her behalf. Once
approved, noncitizen enters and couple must marry
within 90 days. Then can file adjustment of status
Immigrant visa options: Consular Processing
2: CP (Immigrant visa processing)
I-130 approval sent to DOS
DOS NVC processing 6-8 weeks
I-601A (only in certain situations)
Consular post processing
Forms DS-230 part 1 and 2 or DS-260 online (depends on post)
Home Country Processing
Third Country Processing
(“Homeless” versus “Discretionary” jurisdiction)
Immigrant Visa Processing:
Concurrent I-485/I-130 Filing.
the U.S.: Apply through I-130 and I-485
• Benefits issued in approx. 3 months (EAD & AP)
• In-person interview of the couple, under oath
• Couple is separated at many District Offices of
• Marriages less than 2 years’ duration CPR
• Remove condition through I-751 LPR (waiver or
• Citizenship in Three (3) years
Options for same-gender spouses of noncitizens using employment-based green cards
One spouse is sponsored by his/her employer
through a Labor Certification or I-140 exempt from Labor
• Form I-485 filed as part of the employment based green card
process for EB-1, EB-2, EB-3, (Skilled Worker), and EB-5
(“Investor”) may now include same-gender spouse
• Also works with a “self-sponsored” I-140 (NIW or AEA)
no Labor Certification needed
• If the I-485 of the primary beneficiary (employee) has already
been filed, the spouse’s I-485 must be filed ASAP and
receipted before the employee’s I-485 is approved
Violations: marriage fraud, domestic
violence, and the “U” visa
Marriage Fraud Act (IMFA) affects all
• What are the penalties under IMFA?
How is fraud usually detected?
• What if there are issues of domestic violence,
criminal convictions, or other grounds of
• The “U” visa for victims of domestic violence
Stateside waivers for non-citizen spouses
who have triggered “unlawful presence” in
is unlawful presence?
are its consequences?
are the grounds for a waiver?
is a “stateside” waiver?
• Permission to reapply after previous immigration
• Waiver of 2 year home residency requirement for
certain J-1 nonimmigrants
“exceptional hardship” or persecution
DOS Waiver Review Division (no objection, IGA, etc.)
I-601 versus I-601A
For CP (only if in U.S.): I-601A
Unlawful presence waiver of 3/10 year bars only
“Reason to believe”
For AOS or CP: I-601
Most other (e.g. fraud/misrep, 3/10 year bars,
criminal grounds, etc.)
For either I-601 or I-601A, must demonstrate “extreme
hardship” to U.S. Citizen spouse or parent
Asylum, withholding of removal, and CAT
• Past persecution or well-founded fear of future persecution
race, religion, nationality, political opinion, or particular
• 1994 sexual orientation recognized as particular social group
• Transgender and HIV-positive individuals as particular social
• One-year deadline
Prosecutorial Discretion (PD)
and lesbian noncitizens in long-term relationships or
married to US citizens or LPRs in removal but without eligibility
for relief should consider seeking PD from ICE.
• See PD memos at
• Family relationships include two adults in a committed, longterm, same-sex relationship according to DHS guidance.
• Seek motion to reopen where final order if noncitizen has USC
Noncitizens in Removal
in removal should apply for relief same
as different-sex beneficiaries/spouses.
• If case on appeal to BIA, file for renamed to seek
relevant form of relief based on marriage.
• Noncitizen immigrant detainees with USC partner in
state which does not permit same-sex marriage –
advocate for transfer to marriage equality state.
Under UAFA, to qualify as a permanent partner, a person must be
able to show: (a) a relationship with another adult in which both
parties intend a life-long commitment; (b) financial interdependence;
(c) exclusivity; (d) inability to marry in a manner that is “cognizable”
under the INA; and (e) absence of close blood relationship
American Families Act (UAFA)
amendments to BSEOIMA S744 (2013)
UAFA parallel amendment; and
“equal protection” amendment which carves out an exception to
DOMA in the immigration context (same-sex marriages valid for
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