AFTER DOMA – WHAT IT MEANS FOR SAME SEX IMMIGRATION CASES

We were not expecting much interest in this topic in the Vietnamese community, but we have received several inquiries, both from the US and from Vietnam, so here are the main points of the recent change in the immigration law for same sex couples.

The Supreme Court’s DOMA ruling applies only to the federal government. It does not change the laws in the states. California, and eleven other states, and the District of Columbia allow same sex marriage. Other states do not.

Federal agencies such as CIS and US Consulates may take some time to change forms, implement procedures, train personnel, and efficiently include same-sex couples into the spousal-based system.

A US citizen or permanent resident sponsoring a same-sex partner: the options for this kind of sponsorship will depend on

· whether the partners are living together or in different countries;
· whether the partners are living together in the United States or abroad;
· whether the partners have married;
· whether the partners can marry;
· and, for couples living together in the United States, whether the non-U.S. citizen partner arrived here after having been inspected by an immigration officer or whether the partner entered without inspection.

Immigrants Who Are In Lawful Immigration Status (for example an H1B or L1 visa), married to same-sex spouse: The foreign spouse should be able to apply to adjust status to lawful permanent resident and process the paperwork from within the U.S.

An immigrant in the United States on a non-immigrant visa (for example a tourist or student visa): Is it a problem for same sex partners to marry and file a marriage-based green card application? Yes, BUT in this kind of case, there will probably be an intensive inquiry by USCIS.

Immigrants Who Are Out of Status, for example, someone who entered the U.S. with a visa several years ago and never left. Can a U.S. citizen spouse file a green card application even though the immigrant is now here without legal status?

Yes. As long as the immigrant spouse you entered the U.S. with inspection by a U.S. immigration officer, you can still file for a green card from inside the U.S. even if you are currently here without lawful status.

Immigrants who entered the U.S. without a visa and without inspection, by crossing the Mexican border. Can they be sponsored for a green card?

It’s complicated. You cannot adjust status from within the United States if you entered without inspection. That means you will have to return to your home country to apply for a green card through consular processing. To avoid a 3 to 10 year re-entry bar, you may be able to file for a provisional waiver while you are in the US and wait here for the waiver to be approved before you leave the U.S. to use consular processing.

If you are in the US but your same sex partner is abroad, and you are legally married to your partner, what can you do?

If already legally married, you can file a spouse petition for your same sex partner. The visa application will be processed through the U.S. Consulate. If the case is approved, your spouse will be able to enter the US as a lawful permanent resident.

If the foreign partner lives in Vietnam where same sex marriage is not permitted, what are the options?

USCIS has not made any official announcement about same sex fiancée cases, but it seems logical that they would be treated equally with same sex marriage cases. So, if you are an American citizen, one possible option is for you to file a fiancé visa petition for your partner. You would have to provide evidence that this is a committed relationship. You must marry within 90 days of your partner’s entry into the United States. Once married, you can file a marriage-based petition for your foreign spouse.

Another possibility would be for your partner to come to the U.S. as a tourist, marry, and then return to Vietnam and go through consular processing there. Consular processing would probably be much less frustrating that dealing with CIS in the US in this type of case.

If you are a permanent resident but not yet a US citizen, can you sponsor your foreign same sex spouse for a green card?

Yes, you could file an I-130 marriage petition for your foreign spouse. Right now, there is about a two year wait before your spouse would be able to apply for an immigrant visa. If the CIR becomes law, that two year waiting time would be eliminated. And, if you become a citizen while your spouse is “in line” to file for permanent residence, you could immediately file for the green card once you are naturalized. Note that permanent residents cannot sponsor a fiancée.

My same sex partner and I live together now in California. We want to marry but we would prefer to keep our relationship private. Is a marriage license a public record?

Yes, marriage licenses are public records; however, in California, couples can apply for a “confidential” marriage license. If they do this, the public record would just show that each of them is married, but it would not show who, when, and where the person married, and would not give the person’s address. This may be a good option for those who do not want anyone to know the name of their spouse or where they live.

Can out-of-state same sex couples marry in California? Yes. There is no residency requirement to marry in California.

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Q.1. Can religious institutions or clergy members refuse to perform marriages for same-sex couples?
A.1. Yes. Religious institutions and clergy members can decline to perform marriages. In such cases, the couple would have to be married at city hall or by a civil servant such as a judge or authorized deputy.

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Q.2. Can a private business, such as a florist, photographer, or event space refuse to provide space or a service for a same sex wedding?
A.2. No. California law does not permit business establishments to discriminate on the basis of sexual orientation, gender identity, gender expression or marital status.

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Q.3. Can a landlord refuse to rent a house or apartment to a same sex couple?
A.3. No, California law prohibits housing discrimination.

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ROBERT MULLINS INTERNATIONAL www.rmiodp.com
Immigration Support Services-Tham Van Di Tru

9070 Bolsa Avenue, Westminster CA 92683 (714) 890-9933 
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