subject: Issues Surrounding Lgbt Immigration To The Usa [print this page] This piece will briefly analyze recent American Court decisions that could ultimately have a substantial impact on the American visa process for LGBT couples.
The body of law that comprises America's Immigration jurisprudence is vast and complex. As United States Immigration law is codified it can be difficult for laymen to wade through the myriad rules and regulations that relate to visa issuance and admissibility. One area where American law is, currently, quite clear is family based immigration. Pursuant to relevant sections of the so-called Defense of Marriage Act (DOMA) it is, at the time of this writing, not possible for the same sex fiance, spouse, or partner of a United States Citizen or Lawful Permanent Resident to obtain US Immigration benefits based solely upon a same sex relationship. This is true even where the marriage, or intended marriage, might be recognized or solemnized by a State in the USA.
Under the provisions of the Defense of Marriage Act (DOMA) the US Federal government does not recognize same sex marriages as a basis to petition for a spousal visa such as a CR-1 or IR-1 visa. Furthermore, the Defense of Marriage Act forestalls use of a K1 fiance visa by same sex partners wishing to solemnize a marriage in a US State which allows same sex civil union or marriage.
In recent weeks, two significant Court rulings have questioned the Defense of Marriage Act's Constitutionality. A recent case in the State of California took up the issue of same sex marriage, but slightly more in the context of California law. Meanwhile, a recent decision by the Federal Court in Massachusetts could ultimately lead to the repeal of the Defense of Marriage Act.
In the past several months and weeks some policy changes have accorded US LGBT couples with new rights and privileges; though, many of these benefits are only accorded to those in unique factual situations. For example, the State Department announced that same sex partners of American Diplomats, Consular Officers, and Foreign Service Officers may be accorded the same privileges as their different sex counterparts in the form of travel documents and living arrangements. However, this policy may create the rather odd situation in which the Officer adjudicating a visa application for the same sex partner of an American overseas is required to deny the application even though similar benefits are accorded to the adjudicating officer's same-sex spouse or partner residing in the Mission's host country.
Same sex family immigration issues have yet to be fully delineated in the USA. Until they are, those interested in seeing Equal Immigration rights should keep abreast of immigration news and support those legislative initiatives such as the Uniting American Families Act (UAFA) which are designed to make the US Immigration process more equitable for LGBT couples.
