Immigration Options for LGBT foreign Nationals and Their families Defense Of Marriage Act (DOMA) is Dead.


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Immigration Options for LGBT foreign Nationals and Their families Defense Of Marriage Act (DOMA) is Dead.

  1. 1. Immigration Options For LGBT Foreign Nationals And Their Families: DOMA Is Dead. Presented By: David H. Nachman, Esq., Ludka Zimovcak, Esq. & Felicia Zeidman, Esq. VISASERVE Plaza 487 Goffle Road Ridgewood, NJ 07450 Ph: 1-201-670-0006 Toll-Free: 1-866-599-3625 E-mail: WWW.VISASERVE.COM
  2. 2. IN GENERAL: Marriage recognition in the immigration context Marriage recognition under federal immigration law: • Valid where performed • No bad faith • Not contrary to public policy in state where individuals reside
  3. 3. Preliminary Information • DOMA enacted in 1996 when no state permitted same sex marriage • Currently thirteen marriage equality states plus Washington D.C. • Section 3 of DOMA is only impediment to applications for LPR status – 36,000 lesbian and gay binational couples affected by DOMA
  4. 4. What is DOMA? • What did DOMA do? • U.S. Immigration laws and regulations operate at the Federal level • The interplay between state law protections and Federal benefits • “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?
  5. 5. United States V. Windsor • “No 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.
  6. 6. Death Of DOMA Opens Immigration Benefits Generally • Immigration marriage         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 Fiancé petition VAWA self-petition
  7. 7. Immigration Benefits More Precisely • Dependent 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
  8. 8. Place of celebration rule • “Marriage Equality” states • “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).
  9. 9. 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.)
  10. 10. What about Civil Unions? • DOS 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 Cohabitation
  11. 11. Marriage fraud issues • Same-sex 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.
  12. 12. Marriage fraud issues (Cont.) • Any 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
  13. 13. Post DOMA Immigration Options? • Now that DOMA is dead, what options exist for same-sex binational couples and their families?     Nonimmigrant visa options Immigrant visa options Waivers Asylum
  14. 14. Applying for Benefits and Retroactivity. • Can 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 to request reopening. NO fee required.
  15. 15. PRE-DOMA: Nonimmigrant visa options • Unmarried 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
  16. 16. POST-DOMA: Nonimmigrant visa options • Dual   foreign national couples: Married:  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 Not married:  The B-2 visa for “cohabiting partners” of principal nonimmigrants   6 month to 1 year initial status validity; extendable in 6 month increments Either:  Both spouses qualify independently for their own visas
  17. 17. Consular Processing Concerns • Noncitizen spouse NOT in US can seek LPR status through consular processing. • In some countries, may create a threat to safety of foreign national. Many countries criminalize homosexuality. • Advocates may want to request third country processing.
  18. 18. POST-DOMA: Same-Gender Nonimmigrant Visas • New “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 “Single”?
  19. 19. Work permits for same-gender spouse of nonimmigrants in E, J, or L status • Eligible 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
  20. 20. Methods For Filing For Immigrant Visas Options for applying for Permanent Residence in the U.S. based on marriage to a U.S. citizen From abroad: I-130 + CP 10 month minimum (10 outside U.S.) I-130 + K-3 + AOS 13-15 month minimum (8-10 outside U.S.) K-1 + AOS 13-15 month minimum (8-10 outside U.S.) In U.S.: I-130 + AOS 5-7 month minimum
  21. 21. Fiancé Visas • For 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 application.
  22. 22. Immigrant visa options: Consular Processing • Step    • DOS   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) Jurisdiction:  Home Country Processing  Third Country Processing o (“Homeless” versus “Discretionary” jurisdiction)
  23. 23. Immigrant Visa Processing: Concurrent I-485/I-130 Filing. • Within 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 USCIS • Marriages less than 2 years’ duration  CPR • Remove condition through I-751  LPR (waiver or concurrent) • Citizenship in Three (3) years
  24. 24. Options for same-gender spouses of noncitizens using employment-based green cards • Example: One spouse is sponsored by his/her employer through a Labor Certification or I-140 exempt from Labor Certification • 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
  25. 25. Violations: marriage fraud, domestic violence, and the “U” visa • Immigration Marriage Fraud Act (IMFA) affects all couples • 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 inadmissibility? • The “U” visa for victims of domestic violence
  26. 26. Stateside waivers for non-citizen spouses who have triggered “unlawful presence” in the U.S. • What is unlawful presence? • What are its consequences? • What are the grounds for a waiver? • What is a “stateside” waiver?
  27. 27. Waivers I-212 • Permission to reapply after previous immigration violation/enforcement action I-612 • Waiver of 2 year home residency requirement for certain J-1 nonimmigrants • • • “exceptional hardship” or persecution DOS Waiver Review Division (no objection, IGA, etc.) Government funded?
  28. 28. Waivers 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
  29. 29. Asylum, withholding of removal, and CAT relief Asylum requires: • Past persecution or well-founded fear of future persecution  race, religion, nationality, political opinion, or particular social group • 1994 sexual orientation recognized as particular social group • Transgender and HIV-positive individuals as particular social group • One-year deadline
  30. 30. Prosecutorial Discretion (PD) • Gay 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 husband/wife.
  31. 31. Noncitizens in Removal • Noncitizens 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.
  32. 32. Immigration Reform? • Uniting  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 • Leahy   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 immigration purposes)
  33. 33. QUESTIONS? Please contact our office for further information: 201-670-0006 / Or visit us on the web at:
  34. 34. Thank you