Since
the Windsor v. United States decision
striking down the Defense of Marriage Act (“DOMA”), many people have become
familiar with the immigrant benefits for same-sex couples married in jurisdictions
that recognize marriage equality, such as spousal benefits for married
couples. But under the Immigration and
Nationality Act, there are dozens more benefits available to married couples
than the run-of-the-mill marriage-based “green card.” The following is a non-inclusive sampling of
some of the benefits now available to couples:
1. Fiancé/Fiancée
Benefits – What comes before gay marriage?
Gay engagements, of course! For
those dual-national couples that have been residing in different countries and
not yet legally married, fiancé/fiancée benefits are available to same-sex
couples now. Immigration lawyers are
routinely filing Form I-129F petitions for those couples that have not yet
married in a jurisdiction that recognizes marriage equality.
2. Non-Immigrant
Benefits – There exists an entire alphabet soup of visas for people to come to
the United States, generally for some sort of employment purpose, and we should
keep in mind that not all same-sex couples are dual nationals. For example, the H-1B visa is a very common
visa issued to specialty workers coming to the United States for a six-year
period. In recent years, long-term
domestic partners could qualify for B-2 visa status, as visitors for
pleasure. Now, since the Windsor decision, same-sex spouses can qualify
for H-4 visas, as spouses or derivatives on the H-1B visa. H-4 visa holders are still not authorized to
work, but generally find it easier to obtain drivers licenses while residing in
the United States. There are a variety
of derivative visa benefits for other employment-based non-immigrant visas, as
well.
3. VAWA
Benefits – Married victims of domestic violence can qualify for either deferred
action or residency under the Violence Against Women Act (“VAWA”). A bit of a misnomer, VAWA immigration benefits
are available to married victims of domestic violence regardless of their
gender, when the abusing spouse is either a United States citizen or lawful
permanent resident, or when the foreign national is the other parent of an
abused child and the abuser is a United States citizen or lawful permanent
resident. Following the Windsor decision, VAWA benefits are
available to those same-sex spouses who have fallen victims of physical abuse
or extreme emotional cruelty by their United States citizen or lawful permanent
resident spouses.
4. Derivative
Immigrant Beneficiaries – Aside from spouses of United States citizens and
lawful permanent residents being obvious beneficiaries of the Supreme Court’s Windsor decision, other derivative
benefits apply under the Immigration and Nationality Act, as well. In family-based and employment-based
immigrant visas, same-sex spouses are also recognized as derivative
beneficiaries, as are the children and stepchildren created of the
relationship. For example, when the priority
date becomes current for a sibling of a United States citizen comes current,
that sibling’s entire family, including the same-sex spouse, becomes eligible
to immigrate to the United States, as well.
Another example is when an employer sponsors a skilled worker or
professional for an EB-3 visa, the same-sex spouse likewise becomes eligible as
a derivative on that visa petition.
5. Cancellation
of Removal – When an undocumented foreign national is being removed or deported
from the United States, their removal may be cancelled and their status may be
adjusted to that of a lawful permanent resident when they have satisfied to the
Immigration Judge that, among other things, their expulsion from the United
States would cause an “exceptional and extremely unusual hardship” to their
United States citizen or lawful permanent resident spouse, parent, or
child. Now that marriage equality is
recognized on a federal level, both the definition of “spouse” and “child” are
affected in that federal law will recognize the same-sex spouse for
cancellation of removal purposes, as well as a stepchild relationship created
by the union. Furthermore, the high
standard of “exceptional and extremely unusual hardship” may be easier to reach
in some cases now as the type of hardship a gay spouse might suffer in another
country is much more likely to be exceptional and extremely unusual, depending
on the country conditions of that foreign country and the treatment of LGBT
persons there. If there are children of
the relationship, the treatment of the entire family and the home country’s
views and/or stigma on a gay or lesbian couple raising children could also be
demonstrated as additional hardship. And
even further, when the United States citizen or lawful permanent resident spouse
is also HIV+, the Immigration Judge will also evaluate how the HIV status and
treatment in the other country might impact their hardship, as well.
6. Asylum
Derivatives – Persons seeking asylum in the United States based on their sexual
orientation, or on other bases, would also be able to have their spouses
admitted to the United States as asylee derivatives, as well. An asylum derivative would enjoy the same
rights and privileges as the principal asylee, including employment
authorization and the opportunity to apply for lawful permanent residency one
year after admission, but would not be required to present their own case for
persecution to obtain the benefit. Prior
to the Windsor decision, if a
same-sex couple were fleeing persecution in their home country, seeking refuge
in the United States, each spouse would have to file their own independent case
for asylum in the United States and be granted separately. Should either spouse have not been able to
make their case, this would have been fatal to the couple remaining
together. Now, only one spouse has to
make their case and the other spouse would be admitted as a derivative on the
principal asylee’s application.
The Windsor decision opened the door to a myriad of benefits for LGBT persons under the Immigration and Nationality Act by placing same-sex married couple on the same playing field as their opposite-sex counterparts. The above is only a sampling of some of those benefits. Prior to the Supreme Court’s decision, it was much more difficult to put together a sound strategy for LGBT couples wishing to remain together despite rather difficult laws. Today, in this post-DOMA world, options are plentiful.
Bookmark this post with:
Posts
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.