By Brian Aust
Claire and Maria have been in love for nearly 20 years. Unable to marry, they established a business that allowed Maria to acquire a nonimmigrant visa and travel from her home in an Asian country to the United States to be with Claire several months throughout each year. Claire also made occasional trips to Maria’s home country. Maria regularly traveled to the United States, but each time she arrived the Customs and Border Protection (CBP) Officers of the U.S. Department of Homeland Security detained her, often for hours, asking probing questions about her relationship to Claire. At one point, Maria was coerced into revealing that she and Claire are life partners. Then, several years later, Maria was refused entry to the United States. The CBP officer incorrectly concluded that she was in possession of the wrong type of visa and ordered her removed (deported) from the United States and sent her back to her home country – barred from returning to the United States for five years.
Claire and Maria spent many hours and thousands of dollars to undo the order of removal, and Maria was reissued her nonimmigrant visa. The long trips back and forth resumed. However, the financial and emotional toll of the removal order and encounter with CBP took a heavy toll on the business the couple had lovingly worked to create. Eventually the business was brought nearly to collapse.
Then, on June 26, 2013, while Maria was in the United States visiting Claire, the U.S. Supreme Court overturned Article III of the Defense of Marriage Act (DOMA), holding that the federal of definition of marriage was unconstitutional.
By many estimates, there are approximately 36,000 same-sex bi-national couples who, prior to the Windsor decision, were prevented from enjoying benefits under U.S. immigration law in the same way that opposite sex couples have been able to for decades. With the Supreme Court’s decision, the obstacle to enjoying full recognition under federal law fell away.
In what can only be described as remarkable speed by government standards, the Secretary of the Department of Homeland Security Janet Napolitano issued the following statement on July 1:
After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.
Before Maria returned home Claire filed the initial petition with USCIS that will allow Maria to apply for a fiancée visa in her home country. It remains pending, but hopefully USCIS will approve it soon and Maria can then come to the United States to be with Claire permanently.
The Windsor decision will have many impacts in the area of federal government benefits, but in the area of immigration, that impact is has been swift and dramatic, in no small way because of the distances that couples have had to travel to stay together.
In this post-Windsor environment, same-sex couples married in one of the several states, the District of Columbia, or the many countries throughout the world that instituted marriage equality will be able to derive benefits under U.S. immigration laws. For example, a U.S. Citizen or a Lawful Permanent Resident can file the required petition for his or her foreign national spouse. If approved, the foreign national spouse will then be able to apply for permanent residency (green card).
The benefits to same-sex spouses are broader than this example however. Persons coming to the United States with a nonimmigrant visa can have their same-sex spouses apply for a derivative visa status. On August 2, in London, Secretary of State John Kerry announced that the State Department will consider same-sex marriages in the same way that it previously considered opposite sex marriages for all visa applications, meaning that a person coming as a student or as a temporary worker, can bring his or her spouse.
Most important to same-sex couples seeking to navigate the complex immigration laws has been the consistent declaration by all levels of the federal government that for purposes of seeking immigration benefits, the couple need only show that they were married in a jurisdiction recognizing their marriage – the “place of celebration” rule. There is no further requirement mandating that the couple reside in a place where their marriage would be determined to be lawful. As a result, same-sex couples living in states where marriage equality is not recognized can still earn an immigration benefit so long as he or she is otherwise qualified for the benefit sought.
This is an exciting era in immigration law and same-sex married couples looking to benefit from our laws should feel confident that their marriage enjoys full recognition by our government.
Brian Aust has been practicing immigration law since 2000. Information about him and his firm can be found at www.austschmiechen.com