On June 26, 2013, the U.S. Supreme Court rendered landmark rulings in 2 cases basically providing constitutional validity under the equal protection clause to same sex marriages. The Supreme Court decision in the 2 cases of Windsor vs. United States and Hollingsworth vs. Perry brought joy to a lot of people. But what is the effect of these rulings for US immigration?
Angel who is a naturalized U.S. citizen met her long time same-sex partner, Lilia, in 2005. At that time, Lilia was in the United States on a religious worker visa and was an associate pastor for a church located in the San Francisco Bay Area. Lilia was a closeted lesbian until she met Angel. When Lilia’s employer discovered the same sex relationship, Lilia’s employment was terminated and her visa was not renewed. Since then, Lilia has had no legal immigration status. Angel and Lilia subsequently married each other prior to passage of Proposition 8. Both were aware of the long-standing rule in US immigration that does not recognize same sex marriages. However, with the recent Supreme Court rulings on marriage equality, Lilia is wondering whether her long time partner of eight years will now be able to file a petition for her so that she may now get her greencard.
There was no mention of an immigration benefit in either of the 2 Supreme Court rulings on same sex marriages. Will immigration be considered one of the federal benefits which same sex couples may be able to avail of based on the rulings? What can bi-national same sex couples look forward to in terms of obtaining federal immigration benefits for a non citizen spouse?
DEFINITION OF MARRIAGE
The federal law known as Defense of Marriage Act (DOMA) defines marriage as a union between “one man and one woman”, and spouse as referring only to a person of the opposite sex. Considering this definitive qualification of what constitutes a valid marriage under DOMA, the U.S. Citizenship and Immigration Services made it clear that no legal authority permits recognition of homosexual relationships as a marriage for purposes of immigration.
Despite the DOMA definition of marriage, there were still same sex couples who tried to obtain immigration benefits by filing petitions for their partners. As expected, these petitions have all been denied in the past. This policy was to remain in place until Congress repeals DOMA or the Supreme Court renders a clear verdict on DOMA’s constitutionality.
With the June 26, 2013 Supreme Court ruling that DOMA’s definition of marriage is unconstitutional, the new legal definition of marriage has now changed such that same sex marriages are now legally valid. The Secretary of the Department of Homeland Security, under which the U.S. Citizenship and Immigration Services belongs, has already made a pronouncement that the Supreme Court rulings will be implemented so that “all married couples will be treated equally and fairly in the administration of our immigration laws.”
FILING PETITIONS FOR SAME SEX PARTNERS
While all petitions for same sex partners were denied in the past, the current situation has now changed with the 2 Supreme Court rulings. U.S. citizens who are married to their same sex partners can now file petitions for their same sex spouses. Same sex couples may no longer be discriminated upon in receiving federal benefits. Aside from health care and tax benefits, filing petitions for same sex partner in the immigration context is considered a federal benefit which can now be availed of. The U.S. Citizenship and Immigration Services is expected to release its new regulations in the next few weeks on the implementation of the Supreme Court rulings.
SOME CHALLENGES
Fraud is an equal opportunity monster. In the same way that there are fraudulent heterosexual marriages, there can likewise be fraudulent same sex marriages entered into for the sole purpose of obtaining immigration benefits. Depending on the country where one lives, there may be religious or cultural issues that prevent a person from coming out with one’s sexual orientation. This may mean that the same sex couples, other than their own declarations, may have no independent evidence of their relationship; thus, exposing the petition to likely denial by the USCIS for lack of evidence.
Proving that the marriage was not entered into solely for purposes of obtaining a green card is still key to approval of spousal petitions. Just like heterosexual couples, it must be shown through supporting documents that there was an intent to establish a life together at the time of marriage and that the intent was for love and companionship.
It is expected that there will be more legal issues that will come out of these 2 Supreme Court rulings. Same sex marriage is still not the law of the land. To date, of the 50 states that compose the United States, same sex marriage is only legal in 13 of those states. With this lack of uniformity in marriage laws among the states, it is just a matter of time before legal challenges will once again reach the Supreme Court.
These legal issues await another day for US Supreme Court rulings. Hopefully, however, immigration benefits will be made clearer through regulatory measures that USCIS is expected to release soon.
The increasing acceptance by several States of same sex marriages and the recent ruling by the US Supreme Court give a huge victory for the civil rights. However, it is not surprising to have divisiveness in the Filipino immigrant community on their views of this issue. Opposition to same sex marriages has mostly been based on religious beliefs. The US Supreme Court has however put the question to rest by declaring that it is an equality issue and that marriage between a homosexual couple is no less than the marriage of a heterosexual couple.
(Atty. Lourdes Santos Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)
