Gay Marriage and Immigration in the United States

While same-sex relationships have always existed in some form or other in every society, it is only now that civil societies are waking up the fact that these should be granted some form of legal status as well. But even then the matter is not so simple. With large segments of population criss-crossing the world, questions are now being raised about the fate of same-sex partners of US citizens who wish to come to the country to be with the one they love. If this is something that concerns you as well, here is a bit about gay marriage and immigration in the United States.

States differ on legality of gay marriage

As if the issue of immigration was not complex enough, the US also has different laws governing legality of gay marriages in different states. Here same-sex couples can legally marry in six states which include Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont as well as the District of Columbia. Same-sex spouses in these states are also allowed to receive state-level benefits of legal marriages.  Of these Massachusetts was the first to legalize same-sex marriages in 2004. The states of New Jersey, Maryland, and Rhode Island do not facilitate same-sex marriages, but do recognize same-sex marriages performed in other jurisdictions. In California, same-sex marriages could be legally performed between June 16, 2008 and November 4, 2008, after which voters passed Proposition 8 prohibiting same-sex marriages. However California recognizes any same-sex marriage from around the world that took place before that end date. Some states like California, Delaware, Hawaii, Illinois, Maine, New Jersey, Nevada, Oregon, Rhode Island, Wisconsin, Washington and federal part of District of Columbia go so far as to grant civil union or domestic partnership status with varying legal benefits of marriage to same-sex couples but do not grant marriage licenses.

The Defense of Marriage Act

Even though gay marriages are legal in some states in the US, the country’s immigration laws are bound by the Defense of Marriage Act or DOMA which in 1996 defined marriage as a legal union between one man and one woman under federal law. Since DOMA is a federal law passed by the United States Congress and defines marriage as between one man and one woman, same sex couples cannot apply for the same immigration benefits granted to heterosexual couples even if they are legally married by a state government. Immigration law is controlled by the federal government and as such, cannot be subject to laws passed by states. This has two major implications concerning immigration and same-sex marriage. For one, the federal government cannot legally recognize a same-sex marriage for the purpose of obtaining immigration benefits, even the marriage was considered valid in another country or even in certain states in the United States. Secondly, If the USCIS believes that a non-immigrant visa (NIV) applicant has a strong incentive to remain in the United States due to the existence of a committed same sex relationship with an American, they can assume immigrant intent and deny the NIV. Both these consequences can, in effect, discourage same-sex marriage since it has the potential to be grounds to deny a NIV.

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While alien same-sex married partners are not yet allowed to immigrate to the United States on the basis of spousal immigration, there is some hope of legal reforms in future. In February 23, 20111, the Department of Justice announced that DOMA was discriminatory and unconstitutional and no longer defends DOMA. However it is only the Supreme Court that has the final say when deciding the constitutionality of laws passed by Congress. Thus in theory at least, gay couples vying for immigration benefits living in the 1st Circuit Courts of Appeals may delay adjudication on their case pending the Supreme Court’s review on the matter.

Immigration on the basis of asylum

Even if you or your gay spouse cannot enter US on the basis of spousal immigration, there are some other avenues you can explore. Gay aliens may enter the United States as asylees under international law. United States courts have determined that foreign homosexuals fall under the categorization of a persecuted social group and can therefore be considered refugees Under the Refugee Act of 1980 and the Immigration and Nationality Act. In order to qualify for asylum status, the applicant must provide evidence of a genuine and well-founded fear of persecution and prove that the persecution is motivated by the applicant’s membership of a social group. A well-founded fear of persecution may be found only if there is a reasonable possibility the applicant will be persecuted in the future, regardless of the severity of the past persecution.
Instances of persecution in the past, however, can be used as documentary evidence to raise the presumption that the applicant may be persecuted in the future. Thus if you or your gay partner wishes to apply for asylum in the US, there must be adequate proof that the applicant has suffered persecution by the government or by a group the government is unwilling or unable to control. The government usually includes the police, the military and government-run schools.

Generally, asylum is granted to those already present or entering in the United States. However, a major provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 is the requirement that all asylum applicants apply within one-year of their last entry into the United States.

B-2 Non-Immigrant Tourist Visa

While same sex partners may not be able to petition for immigration benefits under their respective visas, the partners of those with U.S. immigration benefits can still enter the United States through a B-2 non-immigrant tourist visa and be recognized as the cohabitating partner of the principal visa holder and are allowed to reside with him or her. B-2 cohabiting partners can file for extensions in six month increments during the duration of the principal visa holder’s stay in the United States.

Both immigration and gay marriage are vastly complex matters with varied social, cultural, political and economic nuances. Thus it is inevitable that even in a country as emancipated as the United States, laws governing gay immigration are still evolving and seeking a balance between the principles of personal freedom and national welfare.

Reference:

1. The New York Times - In Shift, U.S. Says Marriage Act Blocks Gay Rights