doma, defense of marriage act, green card, family base, us citizenship, immigrant, nonimmigrant, student visa, work visa, spouse, h-1b visa, LGBT, NAFSA

1. Immigration Options For
LGBT Foreign Nationals
And Their Families:
DOMA Is Dead.
Presented By:
David H. Nachman, Esq.,
Ludka Zimovcak, Esq.
&
Felicia Zeidman, Esq.
VISASERVE Plaza
487 Goffle Road
Ridgewood, NJ 07450
Ph: 1-201-670-0006
Toll-Free: 1-866-599-3625
E-mail: info@visaserve.com
WWW.VISASERVE.COM

2. IN GENERAL: Marriage recognition in the
immigration context
Marriage recognition under federal immigration law:
• Valid where performed
• No bad faith
• Not contrary to public policy in state where
individuals reside

3. Preliminary Information
• DOMA
enacted in 1996 when no state permitted
same sex marriage
• Currently thirteen marriage equality states plus
Washington D.C.
• Section 3 of DOMA is only impediment to
applications for LPR status – 36,000 lesbian and
gay binational couples affected by DOMA

4. What is DOMA?
• What
did DOMA do?
• U.S. Immigration laws and regulations operate at the Federal
level
• The interplay between state law protections and Federal
benefits
• “Firs –class” citizenship at the State level, but “Second-class”
citizenship at the Federal level
• What did Windsor do to DOMA?
• How will DOMA affect eligibility for U.S. immigration benefits?

5. United States V. Windsor
• “No
legitimate purpose overcomes DOMA’s purpose
and effect to disparage and to injure those whom
the State, by its marriage laws, sought to protect in
personhood and dignity.”
• Struck down Section 3 of DOMA, which defines
marriage as a union between a man and a woman
for purposes of all federal statutes and federal
agency regulations and rulings.

6. Death Of DOMA Opens Immigration
Benefits Generally
• Immigration
marriage








benefits and forms of relief dependent upon
Adjustment of Status (AOS) and consular processing (CP) based on
family based petition
AOS or CP based on being derivative of a beneficiary of visa petition
(family or employment)
Cancellation of removal requiring qualifying relative
Waivers that require qualifying relatives
Derivate beneficiary of asylum application
Derivate beneficiary of nonimmigrant visa
Fiancé petition
VAWA self-petition

7. Immigration Benefits More Precisely
• Dependent
status (A through V)
• New “derivative” status for same-gender spouses of work
visa holders (H-1B, L-1, TN, etc.)
• “Derivative” status for spouses of students and exchange
visitors (F-1, M-1 and J-1)
• Work permits under E, L, and J status
• Green card options:


Lawfully married same-gender bi-national couple can enjoy right of
family-based immigration sponsorship
Same-gender spouses count as “immediate family” members

8. Place of celebration rule
• “Marriage
Equality” states
• “Marriage Equality” countries = foreign jurisdictions where
same-gender marriage is recognized
• What about a state that doesn’t fully recognize same-sex
marriage or doesn’t actually call it “marriage” (such as civil
union or domestic partnership)?
• Validity of marriage determined by the law of the State where
the marriage was celebrated
• Couples do not have to live in marriage equality state in order
to apply for immigration benefits. See Matter of Lovo-Lara, 23
I&N Dec. 746 (BIA 2005); Matter of Zeleniak, 26 I&N Dec.
158 (BIA 2013).

9. Place of celebration rule
Fifteen countries: Argentina, Belgium, Brazil, Canada,
Denmark, France, Iceland, Netherlands, New
Zealand, Norway, Portugal, South Africa, Spain,
Sweden, Uruguay (plus England & Wales in 2014!)
Fourteen U.S. states: California, Connecticut,
Delaware, Iowa, Maine, Maryland, Massachusetts,
Minnesota, New Hampshire, New York, New Jersey,
Rhode Island, Vermont and Washington
Two North American capital districts: Mexico City
(Mexico), District of Columbia (U.S.)

10. What about Civil Unions?
• DOS
FAQs indicates that agency will NOT recognize
civil unions as marriages at this time.
• Argue that agency should consider a civil union as
marriage. Foreign Affairs Manual (FAM) recognizes
common law marriages, but only if full legal
equivalent of marriage. 9 FAM 40.1 N1.2
Cohabitation

11. Marriage fraud issues
• Same-sex
marriages examined by USCIS to same
degree as different-sex marriages.
• INA 204(c): person found to have engaged in
marriage fraud barred from receiving a visa in
preference categories in future.
• Prior petition based on different-sex marriage will
raise suspicions. Note difference between fraud and
failure to establish bona fides.

12. Marriage fraud issues (Cont.)
• Any
noncitizen who seeks, has sought, or has procured any
benefit under INA by fraud or willful misrepresentation is
inadmissible. INA 212(a)(6)(c).
• Same-sex partners disadvantaged in past-relationships
recognized for purposes of finding immigrant intent under
INA 214(b) but not recognized for immigration benefits.
• Many couple not open in the past about their relationships
with DHS or DOS.


Financial sponsor for student visa – noted as friend rather than
husband or partner
Unclear how agencies will address this issue

13. Post DOMA Immigration Options?
• Now
that DOMA is dead, what options exist for
same-sex binational couples and their families?




Nonimmigrant visa options
Immigrant visa options
Waivers
Asylum

14. Applying for Benefits and Retroactivity.
• Can
apply for immigration benefits now.
• Previously denied applications (I-130s) – USCIS
reopening some cases.
• USCIS will reopen cases denied solely because of
DOMA after February 23, 2011, date DOJ stopped
defending DOMA in court.
• Anyone with denied I-130s despite date can email
USCIS at USCIS-626@uscis.dhs.gov to request
reopening. NO fee required.

15. PRE-DOMA: Nonimmigrant visa options
• Unmarried
Foreign national partners of U.S. citizens
or permanent residents



Visa waiver program
Single intent visas (primary intent)
Dual intent visas
Must not violate nonimmigrant status

16. POST-DOMA: Nonimmigrant visa options
• Dual


foreign national couples:
Married:
 Spouse of F-1 or M-1 gets F-2 or M-2
 Spouse of H-1B gets H-4
 Spouse of L-1A gets L-2 visa
Not married:
 The B-2 visa for “cohabiting partners” of principal
nonimmigrants


6 month to 1 year initial status validity; extendable in 6 month
increments
Either:
 Both spouses qualify independently for their own visas

17. Consular Processing Concerns
• Noncitizen
spouse NOT in US can seek LPR status
through consular processing.
• In
some countries, may create a threat to safety of
foreign national. Many countries criminalize
homosexuality.
• Advocates
may want to request third country
processing.

18. POST-DOMA: Same-Gender Nonimmigrant
Visas
• New
“derivative” visa status for same-gender
spouses of work-visa holders (H-1B, L-1, O-1, I, TN, E1, E-2, E-3, and others)
• If outside the U.S.: apply through filing DS-160 and
schedule consular interview
• Include marriage certificate
• What do I check on the form – “single” or “married”?
• What if I was married but previously checked
“Single”?

19. Work permits for same-gender spouse of
nonimmigrants in E, J, or L status
• Eligible
if the spouse of a J-1, E-1, E-2, E-3, or L-1
(both L-1A and L-1B)
• Apply for Employment Authorization Document (EAD)
card on Form I-765
• Approximately 3 month process
• Result: “open market” work permission

20. Methods For Filing For Immigrant Visas
Options for applying for Permanent Residence in the
U.S. based on marriage to a U.S. citizen
From abroad:
I-130 + CP
10 month minimum (10 outside U.S.)
I-130 + K-3 + AOS 13-15 month minimum (8-10 outside
U.S.)
K-1 + AOS
13-15 month minimum (8-10 outside
U.S.)
In U.S.:
I-130 + AOS
5-7 month minimum

21. Fiancé Visas
• For
noncitizens outside United States, USC can file
fiance visa petition on his/her behalf. Once
approved, noncitizen enters and couple must marry
within 90 days. Then can file adjustment of status
application.

22. Immigrant visa options: Consular Processing
• Step



• DOS


2: CP (Immigrant visa processing)
I-130 approval sent to DOS
DOS NVC processing 6-8 weeks
I-601A (only in certain situations)
Consular post processing
Forms DS-230 part 1 and 2 or DS-260 online (depends on post)
Jurisdiction:
 Home Country Processing
 Third Country Processing
o
(“Homeless” versus “Discretionary” jurisdiction)

23. Immigrant Visa Processing:
Concurrent I-485/I-130 Filing.
• Within
the U.S.: Apply through I-130 and I-485
• Benefits issued in approx. 3 months (EAD & AP)
• In-person interview of the couple, under oath
• Couple is separated at many District Offices of
USCIS
• Marriages less than 2 years’ duration  CPR
• Remove condition through I-751  LPR (waiver or
concurrent)
• Citizenship in Three (3) years

24. Options for same-gender spouses of noncitizens using employment-based green cards
• Example:
One spouse is sponsored by his/her employer
through a Labor Certification or I-140 exempt from Labor
Certification
• Form I-485 filed as part of the employment based green card
process for EB-1, EB-2, EB-3, (Skilled Worker), and EB-5
(“Investor”) may now include same-gender spouse
• Also works with a “self-sponsored” I-140 (NIW or AEA)
 no Labor Certification needed
• If the I-485 of the primary beneficiary (employee) has already
been filed, the spouse’s I-485 must be filed ASAP and
receipted before the employee’s I-485 is approved

25. Violations: marriage fraud, domestic
violence, and the “U” visa
• Immigration
Marriage Fraud Act (IMFA) affects all
couples
• What are the penalties under IMFA?
How is fraud usually detected?
• What if there are issues of domestic violence,
criminal convictions, or other grounds of
inadmissibility?
• The “U” visa for victims of domestic violence

26. Stateside waivers for non-citizen spouses
who have triggered “unlawful presence” in
the U.S.
• What
is unlawful presence?
• What
are its consequences?
• What
are the grounds for a waiver?
• What
is a “stateside” waiver?

27. Waivers
I-212
• Permission to reapply after previous immigration
violation/enforcement action
I-612
• Waiver of 2 year home residency requirement for
certain J-1 nonimmigrants
•
•
•
“exceptional hardship” or persecution
DOS Waiver Review Division (no objection, IGA, etc.)
Government funded?

28. Waivers
I-601 versus I-601A
•
•
•
For CP (only if in U.S.): I-601A
 Unlawful presence waiver of 3/10 year bars only
 “Reason to believe”
For AOS or CP: I-601
 Most other (e.g. fraud/misrep, 3/10 year bars,
criminal grounds, etc.)
For either I-601 or I-601A, must demonstrate “extreme
hardship” to U.S. Citizen spouse or parent

29. Asylum, withholding of removal, and CAT
relief
Asylum requires:
• Past persecution or well-founded fear of future persecution
 race, religion, nationality, political opinion, or particular
social group
• 1994 sexual orientation recognized as particular social group
• Transgender and HIV-positive individuals as particular social
group
• One-year deadline

30. Prosecutorial Discretion (PD)
• Gay
and lesbian noncitizens in long-term relationships or
married to US citizens or LPRs in removal but without eligibility
for relief should consider seeking PD from ICE.
• See PD memos at
http://www.aila.org/Issues/Issue.aspx?docid=35986
• Family relationships include two adults in a committed, longterm, same-sex relationship according to DHS guidance.
• Seek motion to reopen where final order if noncitizen has USC
husband/wife.

31. Noncitizens in Removal
• Noncitizens
in removal should apply for relief same
as different-sex beneficiaries/spouses.
• If case on appeal to BIA, file for renamed to seek
relevant form of relief based on marriage.
• Noncitizen immigrant detainees with USC partner in
state which does not permit same-sex marriage –
advocate for transfer to marriage equality state.

32. Immigration Reform?
• Uniting

Under UAFA, to qualify as a permanent partner, a person must be
able to show: (a) a relationship with another adult in which both
parties intend a life-long commitment; (b) financial interdependence;
(c) exclusivity; (d) inability to marry in a manner that is “cognizable”
under the INA; and (e) absence of close blood relationship
• Leahy


American Families Act (UAFA)
amendments to BSEOIMA S744 (2013)
UAFA parallel amendment; and
“equal protection” amendment which carves out an exception to
DOMA in the immigration context (same-sex marriages valid for
immigration purposes)

33. QUESTIONS?
Please contact our office for further information:
201-670-0006 / info@visaserve.com
Or visit us on the web at:
www.visaserve.com

34. Thank you