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How the marriage equality ruling will affect US petitions

On June 26, the United States Supreme Court rendered landmark rulings in favor of same-sex marriages. What would be the effect of these rulings on US immigration?

Angel who is a naturalized US citizen met her long time same-sex partner, Lilia, in 2005. At that time, Lilia was in the States on a religious worker visa and was an associate pastor for a church located in the San Francisco Bay Area.

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Lilia was a closet lesbian until she met Angel. When Lilia’s employer discovered the same-sex relationship, Lilia’s employment was terminated and her visa was not renewed.  Angel and Lilia subsequently married. This was  prior to the passage of Proposition 8, which sought to ban same-sex marriages. But they were aware that US immigration did not recognize same-sex marriages.

There was no mention of immigration benefits in either of the two recent Supreme Court rulings on same-sex marriages. What can same-sex couples look forward to in terms of obtaining federal immigration benefits for a noncitizen spouse?

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Definition of marriage

The first Supreme Court ruling concerned the constitutionality of the federal law known as Defense of Marriage Act (Doma), which defines marriage as a union between “one man and one woman.” “Spouse” refers only to a person of the opposite sex. The US Citizenship and Immigration Services (USCIS) points to this qualification when it turns down immigration petitions for same-sex spouses.

The Supreme Court has ruled that the Doma’s definition of marriage is unconstitutional. The new legal definition of marriage now includes same-sex marriages.

Same-sex petitions

One effect of this is that US citizens who are married to same-sex partners can now file petitions for their spouses. Same-sex couples will no longer be discriminated upon in receiving federal benefits. Aside from health care and tax benefits, filing petitions for a same-sex partner in the immigration context is considered a federal benefit which can now be availed of.

Immigration agents, however, will still be on the lookout for fraud—an equal opportunity monster. In the same way that there are fraudulent heterosexual marriages, there can likewise be fraudulent same-sex marriages entered into for the sole purpose of obtaining immigration benefits.

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Proving a relationship is not fraudulent may be challenging same-sex couples because in some countries, religious or cultural issues prevent same-sex couples from coming out in the open. This may mean that a same-sex couple may have no independent evidence of their relationship other than their own declarations. This increases the likelihood that their petition may be denied by the USCIS for lack of evidence.

Proving that the marriage was not entered into solely for purposes of obtaining a green card is still key to approval of spousal petitions. Just like heterosexual couples, it must be shown through supporting documents that there was an intent to establish a life together at the time of marriage and that the intent was for love and companionship.

Other legal issues are expected to emerge. Same-sex marriage is still not the law of the land. To date, of the 50 states that compose the US, same-sex marriage is only legal in 13 of them. With this lack of uniformity in marriage laws among the states, it is just a matter of time before legal challenges once again reach the Supreme Court.

But these legal issues await another day in court. Hopefully, immigration benefits will be made clearer through regulatory measures that the USCIS is expected to release in the next few weeks.

The increasing acceptance by several States of same-sex marriages and the recent rulings by the US Supreme Court is a huge victory for civil rights. The Filipino community is divided on the issue. Opposition to same-sex marriages has mostly been based on religious beliefs. The US Supreme Court, however, put the question to rest by declaring that it is an equality issue.

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Atty. Lourdes Santos Tancinco may be reached at [email protected] or at 8877177 or 7211963

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TAGS: Marriage Equality, Migration, same-sex marriages, US
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