Presentation Transcript

1. .Immigration Options for LGBT Clients in a Post-DOMA World

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2. 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 only impediment to applications for LPR status - 36,000 lesbian and gay binational couples affected by DOMA
3. 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.
4. Marriage and immigration law Immigration benefits and forms of relief dependent upon marriage 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 Derivative beneficiary of nonimmigrant visa Fiancé(e) petition VAWA self-petition
5. Place of celebration rule 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).
6. Marriage fraud and related 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.
7. Marriage fraud and related issues (cont’d) 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 couples 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
8. 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
9. Applying for benefits 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 USCIS-626@uscis.dhs.gov to request reopening. No fee required.
10. 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.
11. Noncitizens in Removal Noncitizens in removal should apply for relief same as different-sex beneficiaries/spouses. If case on appeal to BIA, file for remand to seek relevant form of relief based on marriage.
12. 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 http://www.aila.org/Issues/Issue.aspx?docid=35986. Family relationships include two adults in a committed, long-term, same-sex relationshipaccording to DHS guidance. Seek motion to reopen where final order if noncitizen has USC husband/wife.
13. Fiance(e) 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.
14. Other issues Noncitizen immigrant detainees with USC partner in state which does not permit same-sex marriage – advocate for transfer to marriage equality state.
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