Warning for Same-Sex Binational Couples

Foreign nationals should not marry without consulting an experienced immigration attorney. Marrying your partner will not help fix immigration problems.  In fact, marrying your same-sex partner or applying for a change in immigration status based on a marriage to a same-sex partner could lead to deportation or future denials of visa applications.

What you need to know:

1. Even if you marry, you cannot sponsor your spouse for legal permanent residence.

   Immigration is entirely a matter of federal law, not state law.  Under a federal law passed in 1996, the Defense of Marriage Act (“DOMA”), marriage is defined for federal purposes as between "a person of the opposite sex who is a husband or a wife.”  Since the case allowing same-sex couples to marry was decided under the Massachusetts state constitution, it will do nothing to change federal immigration law.  So even if a binational same-sex couple does legally marry in Massachusetts, the same-sex citizen spouse will not be able to sponsor her or his non-citizen spouse for legal permanent residence.

2. Applying for legal permanent residence based on your marriage to a same-sex partner could lead to deportation.

3. Simply getting married could create immigration problems.
   
   • If you are “out of status” – Marrying your same-sex partner may expose your immigration status and open you up to deportation.
   • Applying for non-immigrant visa or status – This includes things like tourist, worker, and student visas.  Generally, when a foreign national seeks to enter the U.S. or apply for/renew legal immigration status, he or she must prove that he or she does not intend to remain in the U.S. permanently.  If the individual is forced to answer a question about marital status and tells a U.S. immigration official that he or she is married to an American, it may be impossible to convince the U.S. authorities that he or she does not actually intend to remain in the U.S. permanently.  If the individual lies or misrepresents facts to hide the marriage, the lie could bar him or her from future immigration benefits or put him or her at risk for deportation.

4. Litigation will hurt the cause, not help.

   Litigation attempting to obtain immigration benefits based on marriage to a same-sex partner could have disastrous consequences.  Congress has virtually limitless power to make decisions about who can immigrate to the U.S. and it is extremely difficult to win more rights for immigrants in the courts.  Such a case could lead to deportation for the non-US citizen involved.  Moreover, a negative ruling in such a case could create a damaging precedent and set back the equal marriage movement for years.

BEFORE ENTERING INTO MARRIAGE WITH A SAME-SEX PARTNER
OR TAKING ANY LEGAL STEPS RELATED TO SUCH A MARRIAGE,
ALL NON-CITIZENS AND PARTNERS SHOULD FIRST
CONTACT A COMPETENT IMMIGRATION ATTORNEY.

The Good News:
The Massachusetts Ruling Is Still Great News For Binational Couples

Now that Massachusetts has recognized a right for same-sex couples to marry, lesbian, gay, bisexual, and transgender (LGBT) rights groups will be in a better position to challenge the Defense of Marriage Act.  Even though a challenge based on immigration would not be a good idea, cases in other areas of the law would have a greater chance of success at knocking down DOMA.  In the end, this could eliminate one of the biggest hurdles to immigration equality for LGBT individuals.

What You Can Do:


1. Advocate for the Uniting American Families Act (UAFA) [formerly the Permanent Partners Immigration Act (PPIA)]
   
   The Uniting American Families Act (UAFA) would create government recognition of same-sex partnerships and allow U.S. citizens and residents to sponsor their permanent, same-sex partners for immigration benefits even if U.S. federal and state laws continue to prohibit marriage for same-sex couples.  Passage of legislation such as UAFA can occur much quicker than a court challenge to DOMA, which could take many years.

   If you would like to find out how you can help secure the passage of UAFA, please contact Immigration Equality at www.immigrationequality.org or (212) 714-2904.

2. Tell Your Story
   
   Sharing your story helps build awareness of the inequality binational same-sex couples face under current immigration law.  It helps people learn about the importance of marriage rights for same-sex couples and fair immigration policy.

   You can tell your story to friends, co-workers and neighbors.  You can share it with the wider community through letters to the editor or op-ed pieces in your local newspaper.

   If you have reason to be concerned about your current immigration status, you may want to tell your story anonymously.  Even so, it can still have a powerful impact.

3. Have a Commitment Ceremony
   
   Instead of being married by the government, you can celebrate your commitment to your partner in a non-governmental ceremony with friends and family.  If you are interested in a religious ceremony, you may want to contact one of the supportive clergy members of the Religious Coalition for the Freedom to Marry at www.rcfm.org.
Resources:
Immigration Equality – www.immigrationequality.org, 212-714-2904

Gay & Lesbian Advocates & Defenders (GLAD) – www.glad.org, 800-455-GLAD

'Freedom to Marry Rings' image upper right © H. Mitchell.