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Same Sex Marriages and the Immigration Challenge – Two Years Later

After the United States Supreme Court decision in United States v. Windsor, 133 S. Ct. 2675, 2695-96, 186 L. Ed. 2d 808 (2013), holding that the Defense of Marriage Act’s definition of marriage was unconstitutional and a deprivation of liberty interest protected by the Fifth Amendment of the U.S. Constitution, the USCIS began processing immigrant petitions for same sex spouses. On July 1, 2015, the then Secretary of Homeland Security Janet Napolitano stated “I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

On June 26, 2015, it will be two years since the landmark decision of the Supreme Court. Since that time, our law firm has processed numerous same sex petitions, all of which USCIS has approved in a swift and efficient manner. We are happy to report that petitions filed on behalf of same-sex spouse are being processed in the same manner as those filed on behalf of heterosexual spouses. Even though the processing is the same, we would like to share some unique challenges faced by same sex couples when preparing the evidence in support of a good faith marriage.

In order to bring a foreign spouse, the US Citizen or Permanent Resident spouse (petitioner) must file I-130 petition to classify the alien spouse (beneficiary) as a spouse of U.S. citizen or permanent resident. As part of the petition, the U.S. Citizen or Permanent Resident petitioner must show that the marriage is bona fide. Case law and regulations have suggested the following non-exhaustive list to prove bona fide marriage:

(1) Marriage Certificate. The marriage certificate can be from U.S. state or a foreign country as long as the marriage was lawful. The USCIS applies the law of the place where the marriage was celebrated to determine whether the marriage is legally valid for immigration purposes. The domicile state’s laws and policies on same-sex marriages will not bear on whether USCIS will recognize a marriage as valid.

(2) Proof of legal termination of all prior marriages. The current marriage is legal only if neither of the parties is married to someone else. The USCIS requires evidence that any prior marriages have been terminated through death, divorce, or annulment, and consequently will require evidence to that effect.

(3) Documentation showing joint ownership of property. Generally, this includes not just real estate, but may include automobiles, furniture, safety deposit box, and others. Evidence includes deed, mortgages, titles, receipts, conveyances, and others.

(4) A lease showing joint tenancy of a common residence. If the couple rents, typically, we request the lease showing both names on the lease. If the couple lives with a relative and there is no lease, we request affidavit of the owner of the property, and receipts for payments of rent, preferably from a joint account.

( 5 ) Documentation showing commingling of financial resources. This is one of the most important pieces of evidence the USCIS considers. Typically the evidence is of joint credit card statements, bank accounts, life insurance, car insurance, businesses, joint income taxes, and others. The couple must present joint bank statements for several months demonstrating reasonable balance and usage of the account. An account with $100 in it, which has never been used over a period of time, is a red flag both for our law firm, and USCIS.

Joint state income taxes may present special challenge for gay couples if the state does not recognize same sex marriages. Recently, the U.S. States Supreme Court has granted certiorari in the case of DeBoer v. Snyder, where the Supreme Court will decide two questions: (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?; and (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?

( 6 ) Birth certificate(s) of child(ren) born to the petitioner and spouse. This presents also a challenge since any children will either be adopted, or if born to the marriage, will likely be biologically related to only one of the parents.

( 7) Affidavits sworn to or affirmed by third parties having personal knowledge of the bona fides of the marital relationship (Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit; his or her relationship, if any, to the petitioner and beneficiary; and complete information and details explaining how the person acquired his or her knowledge of the marriage. The affiant may be required to testify before an immigration officer about the information contained in the affidavit. Affidavits should be supported, if possible, by one or more types of documentary evidence listed in this paragraph.),

(8) Photographs. In addition to the ADIT-style photographs of each of the spouses, the USCIS typically inquire about photographs of the spouses taken together. The best photographs depict both spouses, with relatives and friends, at different locations, seasons, and times.

(8) Any other documentation which is relevant to establish that the marriage was not entered into in order to evade the immigration laws of the United States. For example, if the couple first met over the internet, we request some of the internet exchanges, phone records, photographs, etc. Also, if the couple lived in separate cities, states, or even countries, we require evidence of their keeping in touch (phone records, internet records, chat transcripts, etc.).

The Fraudulent marriage prohibition applies to all marriages, whether same sex or not. Section 204(c) of the Act prohibits the approval of a visa petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. The director will deny a petition for immigrant visa classification filed on behalf of any alien for whom there is substantial and probative evidence of such an attempt or conspiracy, regardless of whether that alien received a benefit through the attempt or conspiracy. Although it is not necessary that the alien have been convicted of, or even prosecuted for, the attempt or conspiracy, the evidence of the attempt or conspiracy must be contained in the alien’s file.

Other Benefits

Spouses are eligible for different benefits under U.S. immigration laws, including following to join employment-based immigrant, refugee, or asylee, qualifying relationship for waiver, and others. In addition, spouses of U.S. citizens will be eligible to apply for citizenship three years after obtaining permanent residence, if during that three year period the spouses have been living in “marital union” with the U.S. citizens spouse, and the spouse had been a U.S. citizen during the three years. A battered same sex spouse is eligible to self-petition in the same way as an opposite sex spouse.

If you are a gay, lesbian, or a transsexual person and would like to live with your loved one in the United States, our immigration law office can assist you in obtaining proper immigration status. We will review the options available to you and your partner or spouse and will assist you in obtaining a proper status to live with your loved one in the United States.

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