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Seven years ago to this month, the U.S. Citizenship and Immigration Service (USCIS) and the Department of State opened immigration benefits for same-sex couples in the same way as those for opposite-sex couples.
It took quite a while for the U.S. to come around. In 2013, the U.S. Supreme Court in United States v. Windsor (570 U.S. 744) struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional for purposes of federal benefits, including immigration. DOMA defined marriage as a legal union between a man and a woman. It allowed states to refuse to recognize same-sex marriages granted under the laws of other states.
U.S. immigration law historically discriminated against LGBT persons. The Immigration Act of 1917 banned homosexual immigrants because they are considered “mentally defective” and “persons with constitutional psychopathic inferiority.”
Some 50 years ago, the U.S. Supreme Court in Boutilier v. Immigration and Naturalization Service (INS) , upheld the deportation of Clive Michael Boutilier, a U.S. permanent resident from Canada on the ground that the Immigration and Nationality Act of 1952 considered homosexual aliens like him “afflicted with psychopathic personality.” The “psychopathic personality” provision of the 1952 Immigration and Nationality Act remained in effect until Congress repealed it in 1990.
In 1975, Richard Adams, a Manila-born American citizen, and Anthony Sullivan, an Australian who was visiting the U.S. on a tourist visa, were issued a marriage license and exchanged marital vows in a religious ceremony in Boulder, CO. Adams filed a spousal petition on behalf of Sullivan but this was denied by the then-INS with a letter stating that they, “have failed to establish that a bona fide marital relationship can exist between two f___ts.”
The couple eventually filed a suit against the INS arguing that their marriage was valid under Colorado state law and immigration law. They also asserted that failure to recognize their marriage violated their right to due process and equal protection.
Their legal ordeal went all the way to the U.S. Court of Appeals for the 9th Circuit in a case considered the first lawsuit that sought recognition of same-sex marriage by the federal government. In Adams v. Howerton,673 F. 2d. 1036 (1982) the couple lost, with the Court stating that the term “spouse” under immigration law referred only to an opposite-sex partner, thereby making Sullivan deportable.
Tragically, Adams died in 2012 and did not see the day when same-sex marriages are recognized under immigration law. Sullivan later took steps to reopen his immigration case and was eventually issued a green card in April 2016 – over 40 years after Adams filed the petition.
U.S. v. Windsor has far-reaching implications for spousal immigration. Under the umbrella of marriage equality, immigration benefits that support family reunification and humanitarian reliefs are available to opposite-sex and same-sex couples alike. Some examples are:
• Stepchildren of a foreign same-sex partner can be sponsored for a green card
• The K fiancé(e) visa allows the foreign same-sex partner and his/her unmarried minor child to enter the U.S. so that the couple can marry within 90 days of admission. With a 2015 Supreme Court decision (Obergefell) that made same-sex marriage legal in all 50 states, the foreign spouse can proceed with applying for a green card after their marriage in the U.S.
• Out-of-status same-sex spouses may apply for a hardship waiver to shorten the wait time for them to be reunited with their family in the U.S.
• Nonimmigrant visa applicants in certain categories (e.g., H-1B, L-1, E visa holders, students, or scholars) can be accompanied by their LGBT spouses and children in the U.S.
• Visitor (B) visas for cohabiting partners are available to LGBT couples as well
• Immigrants who are not the direct beneficiary of a green card application (referred to as derivatives) can be accompanied to the U.S. by their same-sex spouses or may obtain “following-to-join” benefits for them.
• Asylum applicants can include their same-sex spouses within their applications or petition for their spouse after getting their application approved.
• Abused same-sex spouses and children of U.S. citizens and permanent residents may remain in the United States even after leaving their abusers under the Violence Against Women Act (VAWA) and may qualify for green card.
In October 2018, the Trump administration instituted a new policy that will deny visas to same-sex partners of diplomats, unless they are married. LGBT groups criticized this move for discriminating against couples who come from countries that do not recognize or even criminalize same-sex marriage.
Despite these gains for LGBT immigrant rights, it behooves advocates to keep a watchful eye on policies that chip away at these gains.
(CRISTINA GODINEZ is an attorney practicing U.S. Immigration law in New York City for over 15 years. In addition to practicing all types of family-based immigration, she represents healthcare facilities and staffing agencies in the immigration cases of foreign healthcare workers. She worked with the immigration law practice group of a top-tier global law firm and later, with the world’s largest immigration law firm. She is also the attorney at the Migrant Center of New York where she oversees the delivery of legal services to low-income clients. Cristina is a member of the American Immigration Lawyers Association. )