More on Marriage

By Victoria Neilson on 04/12/2011 @ 02:00 AM

Tags: In the News

Our legal team is fielding 20 times as many calls and emails as usual, and we are updating and expanding these FAQ's very frequently. Our counsel is always free to the community thanks to the thousands of people who donate to the organization. Please keep in mind that the surge in demand means we cannot answer every email and phone call immediately.

From reading the comments on the blog, it appears that many readers have questions about who should marry and who should not. I will try to answer some of the most common questions we’ve been seeing.

So, is USCIS currently holding marriage-based applications for lesbian and gay couples in abeyance?

Unfortunately, no. After stating that they were doing so, USCIS quickly changed course and stated clearly that they are, again, denying I-130s based on DOMA. Immigration Equality is continuing to push the Administration to do the right thing and stop separating families based on an unconstitutional law.

You’ve said that the scales have tipped in the favor of marriage. Who should marry?

At this point, there are still no tangible immigration rights that come from marriage to your lesbian or gay partner. However, as the tide appears to be turning on marriage and couples’ recognition, we do feel like there are some couples who should marry including the following:

• If your partner entered the U.S. lawfully (with a visa) and overstayed -- If your partner has overstayed her visa, we are recommending getting married. There is no issue of “immigrant intent” in this situation, and being married could, theoretically, provide a defense if your partner is placed in removal proceedings. Please be aware, however, if you live in a state that does not perform marriages for lesbian or gay couples, and you intend to travel elsewhere to marry, there is a risk for a person without lawful status to travel on public transportation as Immigration and Customs Enforcement frequently boards Amtrak and Greyhound and asks for documents.
• If your partner is applying for asylum – Being married could help prove that your partner is lesbian or gay and could potentially provide another defense if the case goes to removal proceedings.
• If your partner is on a long-term work visa such as an H1B – Some common work visas, such as H1Bs and L visas allow the visa holder to have “dual intent,” that is to be in the U.S. temporarily while pursuing permanent status in the U.S. If your partner is in this situation, and if she feels secure in her employer’s ability and desire to sponsor her for permanent residence, it may make sense for you to marry. If your partner is worried that she may lose her job or have to return to using a tourist visa or student visa to enter the U.S., then there may be a danger of showing “immigrant intent” by marrying.

Are there categories of couples who should not marry?

As many of you are all too well aware, in order to obtain a tourist visa, student visa, TN visa, or to enter under the Visa Waiver Program, a foreign national must prove to Immigration that he does not intend to remain in the U.S. permanently. Having a U.S. citizen spouse may be seen by Immigration as a sign of “immigrant intent” and a reason to deny a visa or entry into the U.S.

You should probably not marry if:

• You are living in exile and hoping to get a tourist of student visa to the U.S.
• You are maintaining a long-distance relationship by juggling tourist and student visas and must continue to show a lack of immigrant intent to Immigration.
• You are in the U.S. on a student visa and you hope to extend the visa or travel and re-enter the U.S. with the visa.

What if my partner entered the U.S. without a visa?

If your partner entered the U.S. without inspection (EWI) by crossing the border, then even in a world without DOMA, she could still not adjust her status from within the U.S. unless she had a visa petition approved prior to April 30, 2001. There is probably no reason not to marry if your partner entered EWI, but if the law changes regarding marriage recognition, she would need to leave the U.S. to apply for lawful permanent residence and would then get hit by a bar (probably of ten years) on returning. There are waivers to this bar available for immediate relatives of citizens but they can take a long time to process. The harsh consequences of illegal entry and overstays is one reason that it’s so important that Congress pass Comprehensive Immigration Reform.

Is there anything special my partner and I should be aware of if we’re traveling to another state to marry?

For specific rules, if any, about state-by-state marriage laws, please contact GLAD or Lambda Legal.

Also, if your partner is in the U.S. without legal status and is planning on traveling across state lines, please be aware that there are very real and serious risks involved in traveling on public transportation. Agents from Immigration and Customs Enforcement regularly board Amtrak trains and Greyhound buses demanding immigration papers from riders. ICE claims that it is “voluntary” to comply with these demands, but we have heard from numerous undocumented immigrants who have ended up in removal proceedings because of these encounters with ICE agents.

If I marry my partner, and the U.S. government doesn’t recognize that marriage, do I need to answer “married” on immigration forms or reveal my relationship to Immigration officials?

Immigration Equality has asked USCIS for guidance on how to answer a “married” or “single” question for lesbian or gay couples who are validly married under state or foreign law, but USCIS has never given us an answer. While we do not think that any visa applicant should lie if asked a direct question, we also do not see how U.S. Immigration could require lesbian and gay couples to disclose that they have entered into a marriage which USCIS has stated publicly it will not recognize.

If and when DOMA ends, will a civil union be sufficient for me to sponsor my partner?

No. The Immigration and Nationality Act recognizes spouses as immediate relatives, but there is no provision for recognition of civil unions or domestic partnerships. However, if we gain immigration equality through the passage of the Uniting American Families Act, a civil union or domestic partnership could serve as proof of the relationship.

I still have questions ...

If you have further questions about your situation, please contact Immigration Equality’s legal department.