On October 10, 2009, President Barack Obama spoke at the Human Rights Campaign Dinner in Washington DC. His remarks were geared toward reassuring the LGBT community that this administration is working on solutions for the problems they face in the areas of employment, Hate Crimes legislation, ending the ban on HIV positive persons from entering the United States (which has thankful come to pass), repealing Don’t Ask Don’t Tell, and affording gay couples the same rights and responsibilities straight couples enjoy (though he stopped short of advocating for the enactment of same-sex marriage legislation, in keeping with his stance on the subject since the campaign). He also mentioned repealing the Defense of Marriage Act. This has important implications for same-sex couples in the immigration context as well. President Obama eloquently called for extending the same rights to same-sex couples as straight couples and that must include immigration benefits:
I believe strongly in stopping laws designed to take rights away and passing laws that extend equal rights to gay couples. I've required all agencies in the federal government to extend as many federal benefits as possible to LGBT families as the current law allows. And I've called on Congress to repeal the so-called Defense of Marriage Act and to pass the Domestic Partners Benefits and Obligations Act. And we must all stand together against divisive and deceptive efforts to feed people's lingering fears for political and ideological gain.
The general rule for some time has been that same-sex marriages were given no weight or consideration in the immigration context, which was made clear by act of Congress.1 Within the last ten years, as some European countries (such as the Netherlands, Sweden, Spain, etc.) began recognizing same-sex marriages, and those married people want to come to the United States as a married couple, a solution was needed as to what kinds of visas someone could enter the US on to accompany a same-sex spouse.
Employees of United States companies can come to the United States to work on H-1B visas (depending n the position and their experience) and bring with them family members on H-4 visas, including their spouse and unmarried children under the age of 21. However, because of the United States definition of marriage as being only between a man and a woman, same-sex couples (as well as domestic partners of any kind) may not obtain H-4 visa classification. This is also true for any of the other non-immigrant visa categories, including religious workers, students, inter-company transferees, scientific researchers, professors, artists, entertainers, athletes, etc.
Generally, the only option was to accompany the spouse as a visitor, for six months at a time, arguing that the stay in the United States was temporary each time because it was based on the spouse’s underlying visa category.2 This is the same situation for unmarried couples as well; when the couple are not married, there is no accompanying visa category, and so the use of a visitor visa becomes necessary.
Border officers are not generally inclined to allow someone to enter the United States as a visitor for six month periods repeatedly without some significant time back in their home country. This is because of INA 214(B), the doctrine of “Immigrant Intent”, which the Department of State uses to require visitors to establish that they have a foreign residence, and intend to enter for only a short period of time.3 This is complicated by continuous presence in the United States. The longer you are here, the more it appears you intend to stay permanently, and the more tenuous your connections to your home country become.
INA 214(b) does not apply to the principle alien in certain categories, such as H-1B, or L-1. But it would still apply to the same-sex spouse here on a visitor visa. This means that one way or the other, the spouses would likely be separated for some time. In 2005, the Foreign Affairs Manual (the primary visa guide used by the Department of State) at 9 FAM 41.31 Note 14.4, was modified to allow same-sex spouses to apply for initial entries of up to one year (instead of the standard six months) and extensions in increments of six months. This is helpful, but continues to require vastly different treatment of spouses based on their genders.
Those here on certain types of employment visas do not have to worry about “immigrant intent,” but it would still apply to the same-sex spouse here on a visitor visa. Thus, one way or the other, the spouses would likely be separated for some time. In 2005, the Department of State allowed same-sex spouses to apply for initial visitor entries of up to one year (instead of the standard six months) and extensions in increments of six months. While this is a helpful change, it continues to require vastly different treatment of spouses based on their genders. This is clearly separate and not-quite equal treatment.
This disparate treatment of foreign same-sex marriages became the more difficult to defend as states in the United States began recognizing same-sex marriage. Because the Constitution requires something called full faith and credit… the expectation was that at some point, the immigration policy would have to change. 4
Recently, there have been bills proposed in Congress which would do just that, including the Uniting American Families Act (S.424, H.R. 1024). This bill would: “amend the Immigration and Nationality Act to eliminate discrimination in the immigration laws by permitting permanent partners of United States citizens and lawful permanent residents to obtain lawful permanent resident status in the same manner as spouses of citizens and lawful permanent residents and to penalize immigration fraud in connection with permanent partnerships.” This equal treatment of couples is exactly in keeping with the spirit of the United States which continues to recognize the rights of minorities of all kinds as we slowly progress from the bigotry of our origins.5
I have had many couples contact me for immigration advice over the years, who I had to give the unfortunate news of the dearth of options for them. Should this bill become law, and same-sex couples be allowed to petition for one another, or to accompany each other to the United States in proper visa categories, a new world of immigration possibilities will open up to same-sex couples abroad wishing to come to the United States and to United States citizens married to foreigners.
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1 9 FAM 40.1 N1.1 Marriage and Spouse Defined a. Section 7 of the Defense of Marriage Act (Public Law 104-199) states: “The word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
2 July 1, 2001 Memorandum from Secretary of State to all Diplomatic and Consular Posts, titled “B-2 Classification for Cohabitating Partners”, UNCLAS STATE 118790.
3 9 FAM 41.31 Note 1.1.
4 Constitution of the United States: Article IV, Section 1. “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
5 Constitution of the United States: Article I, Section 2: “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.”
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