Obama, Same-Sex Partnerships and Immigration

Immigration and civil rights advocates have been given reason to be guardedly hopeful about the Obama administration's policy on same-sex marriage and immigration. On Feb. 23, 2011, Attorney General Eric Holder announced that Department of Justice (DOJ) attorneys would no longer defend Section 3 of the Defense of Marriage Act (DOMA) ' which, inter alia, prohibits the U.S. government from recognizing same-sex marriages for any federal purpose ' in lawsuits challenging whether the act is constitutional. Department of Justice, “Statement of the Attorney General on Litigation Involving the Defense of Marriage Act,” Feb. 23, 2011, available at www.justice.gov/opa/pr/2011/February/11-ag-222.html.

Later, the Attorney General took the extraordinary step of halting the deportation of the same-sex civil partner of a U.S. citizen and remanding the case to the Board of Immigration Appeals for determinations on the constitutionality of DOMA and its impact on immigration benefits and relief from deportation. Matter of Dorman, 25 I. & N. Dec. 485 (AG, April 26, 2011).

Though U.S. Citizenship and Immigration Services (USCIS) must still enforce DOMA ' and thus will not approve affirmative immigration petitions filed on behalf of foreign same-sex partners ' the Attorney General's move is an encouraging, if limited, sign of the administration's support for the recognition of immigration benefits for these partners.

Immigration

The recognition of marriage benefits for same-sex couples has special relevance in the immigration context. Foreign nationals sponsored by a spouse or other family member accounted for nearly 70% of the more than one million individuals to immigrate to the United States in 2010. Department of Homeland Security, 2010 Yearbook of Immigration Statistics, available at www.dhs.gov/files/statistics/publications/yearbook.shtm.

Spousal relationships to U.S. citizens and lawful permanent residents provide foreign nationals with an array of immigration options not otherwise available to individuals seeking to live or work in the United States. But U.S. immigration law does not extend these spousal advantages to nontraditional domestic partnerships. This stands in stark contrast to the international trend toward recognition of same-sex partnerships and conferral of immigration benefits on those partnerships, as well as the burgeoning movement promoting the recognition of gay marriage in the United States.

Benefits Under U.S. Law

The Immigration and Nationality Act (INA) (8 U.S.C. ' 1101 et seq.) provides a range of mechanisms for foreign nationals seeking to immigrate permanently or enter temporarily on the basis of a familial relationship, under a general policy of promoting family unity. The INA grants significant immigration preferences to spouses and other family members classified as “immediate relatives” of U.S. citizens. These foreign nationals are not subject to the existing quotas on the number of immigrant visas granted each year. Rather, once a petition for immigration status is approved, an immediate relative can immigrate immediately, without the lengthy waiting periods imposed on immigrants in other categories. 8 U.S.C. ' 1151(b)(2)(A)(i). For example, the current wait for a spouse of a legal permanent resident (LPR) is nearly four years, in contrast to the immediate eligibility for the spouse of a U.S. citizen.

Furthermore, immigration violations that would normally bar a foreign national from admission to the United States or subject him or her to deportation may be waived if the individual is the spouse of a U.S. citizen. 8 U.S.C. ' 1182(h) and (i). Once the spouse of a U.S. citizen has become a permanent resident, he or she need only maintain three years of residency before applying for naturalization, rather than the five years normally required of permanent residents applying for citizenship. 8 U.S.C. ' 1430.

Special Visas

Special visas are available to fianc's of U.S. citizens and spouses of lawful permanent residents who
are waiting to immigrate. 8 U.S.C. ” 1101(a)(15)(K) and (V). Benefits are also accorded to spouses of certain nonimmigrant visa holders; these spouses obtain dependent visas, are permitted to accompany or join the principal nonimmigrant visa holder in the United States for the duration of the principal's stay and, in some cases, may obtain work authorization. See, e.g., 8 U.S.C. ” 1101(a)(15)(H)'(J), (L), (M); 8 U.S.C. ” 1184(c)(2)(E) and (e)(6).

In contrast, unmarried couples are afforded just one immigration-related benefit on the basis of their partnerships. State Department regulations permit the cohabiting partner of a nonimmigrant business visa holder to apply for a visitor visa in order to accompany the principal nonimmigrant to the United States. Though the regulations do not explicitly extend the cohabiting partner visitor's visa to same-sex partnerships, a 2001 State Department internal memorandum makes clear that such partners do qualify, provided they can document the long-term nature of the relationship. State Department Cable No. 01-State-118790 (July 9, 2001), available at http://travel.state.gov/visa/laws/telegrams/telegrams_1414.html.

However, unlike the dependent visas granted to opposite-sex spouses (which are generally granted for the duration of the principal's visa), the visitor visa accorded to a cohabiting partner generally has a six-month or one-year duration and must be renewed every six months for the duration of the principal visa holder's stay.

Cohabiting partners on visitor's visas are also ineligible to work while in the United States. It should be noted that same-sex partners, and indeed any foreign national, can seek immigration status separately from their partners, provided that they independently qualify for an immigrant or nonimmigrant visa, such as a professional worker (H-1B) or outstanding artist (O-1).

Legally Valid Marriage

In order for an individual to qualify for immigration benefits as a spouse, it is essential that the partners be parties to a legally valid marriage. Under general immigration policy, if a marriage is valid at its place of inception, principles of comity dictate that the marriage be recognized in other jurisdictions. Matter of Koehne, 10 I. & N. Dec. 264 (BIA 1963).

However, if the marriage is deemed to be against public policy ' such as a marriage based on a polygamous or incestuous relationship ' it will be discounted as a basis for conferral of an immigration benefit. Matter of H., 9 I. & N. Dec. 640 (BIA 1962); Matter of Zappia, 12 I. & N. Dec. 439 (BIA 1967). Historically, it was under this policy exception that same-sex partnerships were deemed to fail for purposes of the immigration laws ' they were considered against public policy.

Historical Bias

Repudiation of same-sex partnerships under U.S. immigration law has its foundations in a longstanding bias against homosexuals. Historically, gay and lesbian foreign nationals were considered “deviants,” and were excluded from the United States on medical or psychiatric grounds, on the ground that they lacked the requisite good moral character for naturalization or admission as permanent residents. This policy was in effect until relatively recently, when the Immigration Act of 1990 repealed the exclusion and brought U.S. law into relative consistency with more enlightened views on homosexuality. Under present law, private, non-criminal sexual conduct will not serve to exclude foreign nationals from this country. In addition, U.S. law has for several years recognized persecution on the basis of sexual orientation as a ground for granting asylum. See, e.g., Hernandez-Montiel v. INA, 225, F.3d 1084 (9th Cir. 2000); Matter of Toboso-Alfonso, 20 I. & N. Dec. 819 (BIA 1990).

The Impact of DOMA

Though immigration policy concerning gays and lesbians has evolved, the Immigration and Nationality Act has been held not to recognize same-sex partnerships for purposes of conferring spousal benefits, even if the marriage was valid under state law. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982). In 1996, Congress further strengthened the prohibition against same-sex marriage when it enacted DOMA, which established a federal definition of marriage as “a legal union between one man and one woman as husband and wife” for purposes of any act, ruling or regulation of the United States. In practical terms, DOMA bars same-sex partners from receiving benefits under federal law. DOMA also permits a state to refuse to recognize same-sex marriages performed in other states.

But despite DOMA, legal developments in this country and abroad are placing ever greater pressure on the issue of a general right to marry for same-sex couples, as well as the right to extension of legal benefits, including immigration benefits. The U.S. Supreme Court's 2003 decision in Lawrence v. Texas, 539 U.S. 558 (2003), which struck down Texas' anti-sodomy law, broadly recognized the liberty and due process rights of gays and lesbians and energized the ongoing debate over legal recognition of same-sex partnerships in the United States. Since the time of that decision, states have recognized same-sex marriages and civil unions in ever greater numbers.

Currently, five states ' Connecticut, Iowa, Massachusetts, New Hampshire and Vermont ' issue marriage licenses to same-sex couples. And the District of Columbia will permit same-sex couples to marry legally, while several other countries allow civil unions or recognize same-sex marriages solemnized elsewhere. See National Conference of State Legislatures, “Same-Sex Marriage, Civil Unions and Domestic Partnerships,” available at www.ncsl.org/default.aspx?tabid=16430.

Many direct challenges to DOMA have been raised on the ground that the federal law violates the full faith and credit, due process and equal protection clauses of the U.S. Constitution.

The trend toward legalization of same-sex marriage has moved at an even faster pace internationally. Even those foreign jurisdictions that have thus far declined to recognize same-sex marriages may nonetheless offer civil union or registered domestic partnership arrangements to same-sex couples, and extend immigration benefits to unmarried long-term domestic partners, both heterosexual and homosexual.

The growing domestic and international recognition of same-sex marriage rights, and the global trend toward extending legal benefits to same-sex partners in committed relationships, has inevitably exerted pressure on the U.S. government to face head on the issue of same-sex partnership.

Conclusion

Attorney General Holder's most recent action in Matter of Dorman demonstrates the Obama administration's sympathy with the plight of same-sex couples divided by U.S. immigration law. Following the attorney general's action, at least one immigration judge placed a deportation case on hold, and it is likely that there will be renewed calls for ceasing deportations and denials in same-sex partner cases. But unless DOMA is ultimately repealed by Congress or declared unconstitutional by a federal court, impediments for same-sex partners will largely remain.

Michael D. Patrick is a partner at Fragomen, Del Rey, Bernsen & Loewy. Nancy H. Morowitz, counsel, assisted with the preparation of this article, which also appeared in The New York Law Journal, an ALM sister publication of this newsletter.

Immigration and civil rights advocates have been given reason to be guardedly hopeful about the Obama administration's policy on same-sex marriage and immigration. On Feb. 23, 2011, Attorney General Eric Holder announced that Department of Justice (DOJ) attorneys would no longer defend Section 3 of the Defense of Marriage Act (DOMA) ' which, inter alia, prohibits the U.S. government from recognizing same-sex marriages for any federal purpose ' in lawsuits challenging whether the act is constitutional. Department of Justice, “Statement of the Attorney General on Litigation Involving the Defense of Marriage Act,” Feb. 23, 2011, available at www.justice.gov/opa/pr/2011/February/11-ag-222.html.

Later, the Attorney General took the extraordinary step of halting the deportation of the same-sex civil partner of a U.S. citizen and remanding the case to the Board of Immigration Appeals for determinations on the constitutionality of DOMA and its impact on immigration benefits and relief from deportation. Matter of Dorman, 25 I. & N. Dec. 485 (AG, April 26, 2011).

Though U.S. Citizenship and Immigration Services (USCIS) must still enforce DOMA ' and thus will not approve affirmative immigration petitions filed on behalf of foreign same-sex partners ' the Attorney General's move is an encouraging, if limited, sign of the administration's support for the recognition of immigration benefits for these partners.

Immigration

The recognition of marriage benefits for same-sex couples has special relevance in the immigration context. Foreign nationals sponsored by a spouse or other family member accounted for nearly 70% of the more than one million individuals to immigrate to the United States in 2010. Department of Homeland Security, 2010 Yearbook of Immigration Statistics, available at www.dhs.gov/files/statistics/publications/yearbook.shtm.

Spousal relationships to U.S. citizens and lawful permanent residents provide foreign nationals with an array of immigration options not otherwise available to individuals seeking to live or work in the United States. But U.S. immigration law does not extend these spousal advantages to nontraditional domestic partnerships. This stands in stark contrast to the international trend toward recognition of same-sex partnerships and conferral of immigration benefits on those partnerships, as well as the burgeoning movement promoting the recognition of gay marriage in the United States.

Benefits Under U.S. Law

The Immigration and Nationality Act (INA) (8 U.S.C. ' 1101 et seq.) provides a range of mechanisms for foreign nationals seeking to immigrate permanently or enter temporarily on the basis of a familial relationship, under a general policy of promoting family unity. The INA grants significant immigration preferences to spouses and other family members classified as “immediate relatives” of U.S. citizens. These foreign nationals are not subject to the existing quotas on the number of immigrant visas granted each year. Rather, once a petition for immigration status is approved, an immediate relative can immigrate immediately, without the lengthy waiting periods imposed on immigrants in other categories. 8 U.S.C. ' 1151(b)(2)(A)(i). For example, the current wait for a spouse of a legal permanent resident (LPR) is nearly four years, in contrast to the immediate eligibility for the spouse of a U.S. citizen.

Furthermore, immigration violations that would normally bar a foreign national from admission to the United States or subject him or her to deportation may be waived if the individual is the spouse of a U.S. citizen. 8 U.S.C. ' 1182(h) and (i). Once the spouse of a U.S. citizen has become a permanent resident, he or she need only maintain three years of residency before applying for naturalization, rather than the five years normally required of permanent residents applying for citizenship. 8 U.S.C. ' 1430.

Special Visas

Special visas are available to fianc's of U.S. citizens and spouses of lawful permanent residents who
are waiting to immigrate. 8 U.S.C. ” 1101(a)(15)(K) and (V). Benefits are also accorded to spouses of certain nonimmigrant visa holders; these spouses obtain dependent visas, are permitted to accompany or join the principal nonimmigrant visa holder in the United States for the duration of the principal's stay and, in some cases, may obtain work authorization. See, e.g., 8 U.S.C. ” 1101(a)(15)(H)'(J), (L), (M); 8 U.S.C. ” 1184(c)(2)(E) and (e)(6).

In contrast, unmarried couples are afforded just one immigration-related benefit on the basis of their partnerships. State Department regulations permit the cohabiting partner of a nonimmigrant business visa holder to apply for a visitor visa in order to accompany the principal nonimmigrant to the United States. Though the regulations do not explicitly extend the cohabiting partner visitor's visa to same-sex partnerships, a 2001 State Department internal memorandum makes clear that such partners do qualify, provided they can document the long-term nature of the relationship. State Department Cable No. 01-State-118790 (July 9, 2001), available at http://travel.state.gov/visa/laws/telegrams/telegrams_1414.html.

However, unlike the dependent visas granted to opposite-sex spouses (which are generally granted for the duration of the principal's visa), the visitor visa accorded to a cohabiting partner generally has a six-month or one-year duration and must be renewed every six months for the duration of the principal visa holder's stay.

Cohabiting partners on visitor's visas are also ineligible to work while in the United States. It should be noted that same-sex partners, and indeed any foreign national, can seek immigration status separately from their partners, provided that they independently qualify for an immigrant or nonimmigrant visa, such as a professional worker (H-1B) or outstanding artist (O-1).

Legally Valid Marriage

In order for an individual to qualify for immigration benefits as a spouse, it is essential that the partners be parties to a legally valid marriage. Under general immigration policy, if a marriage is valid at its place of inception, principles of comity dictate that the marriage be recognized in other jurisdictions. Matter of Koehne, 10 I. & N. Dec. 264 (BIA 1963).

However, if the marriage is deemed to be against public policy ' such as a marriage based on a polygamous or incestuous relationship ' it will be discounted as a basis for conferral of an immigration benefit. Matter of H., 9 I. & N. Dec. 640 (BIA 1962); Matter of Zappia, 12 I. & N. Dec. 439 (BIA 1967). Historically, it was under this policy exception that same-sex partnerships were deemed to fail for purposes of the immigration laws ' they were considered against public policy.

Historical Bias

Repudiation of same-sex partnerships under U.S. immigration law has its foundations in a longstanding bias against homosexuals. Historically, gay and lesbian foreign nationals were considered “deviants,” and were excluded from the United States on medical or psychiatric grounds, on the ground that they lacked the requisite good moral character for naturalization or admission as permanent residents. This policy was in effect until relatively recently, when the Immigration Act of 1990 repealed the exclusion and brought U.S. law into relative consistency with more enlightened views on homosexuality. Under present law, private, non-criminal sexual conduct will not serve to exclude foreign nationals from this country. In addition, U.S. law has for several years recognized persecution on the basis of sexual orientation as a ground for granting asylum. See, e.g., Hernandez-Montiel v. INA, 225, F.3d 1084 (9th Cir. 2000); Matter of Toboso-Alfonso, 20 I. & N. Dec. 819 (BIA 1990).

The Impact of DOMA

Though immigration policy concerning gays and lesbians has evolved, the Immigration and Nationality Act has been held not to recognize same-sex partnerships for purposes of conferring spousal benefits, even if the marriage was valid under state law. Adams v. Howerton , 673 F.2d 1036 (9th Cir. 1982). In 1996, Congress further strengthened the prohibition against same-sex marriage when it enacted DOMA, which established a federal definition of marriage as “a legal union between one man and one woman as husband and wife” for purposes of any act, ruling or regulation of the United States. In practical terms, DOMA bars same-sex partners from receiving benefits under federal law. DOMA also permits a state to refuse to recognize same-sex marriages performed in other states.

But despite DOMA, legal developments in this country and abroad are placing ever greater pressure on the issue of a general right to marry for same-sex couples, as well as the right to extension of legal benefits, including immigration benefits. The U.S. Supreme Court's 2003 decision in Lawrence v. Texas , 539 U.S. 558 (2003), which struck down Texas' anti-sodomy law, broadly recognized the liberty and due process rights of gays and lesbians and energized the ongoing debate over legal recognition of same-sex partnerships in the United States. Since the time of that decision, states have recognized same-sex marriages and civil unions in ever greater numbers.

Currently, five states ' Connecticut, Iowa, Massachusetts, New Hampshire and Vermont ' issue marriage licenses to same-sex couples. And the District of Columbia will permit same-sex couples to marry legally, while several other countries allow civil unions or recognize same-sex marriages solemnized elsewhere. See National Conference of State Legislatures, “Same-Sex Marriage, Civil Unions and Domestic Partnerships,” available at www.ncsl.org/default.aspx?tabid=16430.

Many direct challenges to DOMA have been raised on the ground that the federal law violates the full faith and credit, due process and equal protection clauses of the U.S. Constitution.

The trend toward legalization of same-sex marriage has moved at an even faster pace internationally. Even those foreign jurisdictions that have thus far declined to recognize same-sex marriages may nonetheless offer civil union or registered domestic partnership arrangements to same-sex couples, and extend immigration benefits to unmarried long-term domestic partners, both heterosexual and homosexual.

The growing domestic and international recognition of same-sex marriage rights, and the global trend toward extending legal benefits to same-sex partners in committed relationships, has inevitably exerted pressure on the U.S. government to face head on the issue of same-sex partnership.

Conclusion

Attorney General Holder's most recent action in Matter of Dorman demonstrates the Obama administration's sympathy with the plight of same-sex couples divided by U.S. immigration law. Following the attorney general's action, at least one immigration judge placed a deportation case on hold, and it is likely that there will be renewed calls for ceasing deportations and denials in same-sex partner cases. But unless DOMA is ultimately repealed by Congress or declared unconstitutional by a federal court, impediments for same-sex partners will largely remain.

Michael D. Patrick is a partner at Fragomen, Del Rey, Bernsen & Loewy. Nancy H. Morowitz, counsel, assisted with the preparation of this article, which also appeared in The New York Law Journal, an ALM sister publication of this newsletter.