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Same Sex Marriage & Immigration

Posted by attorney J Ferrari
Filed under: Immigration court

Although President Obama's administration will no longer defend the mis-named "Defense of Marriage Act" (DOMA) in court, the DOMA is still the law. This means that USCIS will almost certainly continue to apply it to petitions filed by same-sex married couples.

We now have news (\_city\_news/news/doc4d88e4f2b3e0a156734109.txt) that an Immigration Judge in Manhattan has adjourned an immigration case to allow the USC citizen spouse to petition her wife through an I-130 petition. That petition will probably be denied, and the couple will face years of litigation before they most likely succeed.

Where does this leave other same-sex couples?

It all depends on how risk adverse the couple is, and, unfortunately, on whether they can finance a protracted fight.

If a same-sex couple files an I-130 petition and an I-485 application for adjustment of status, they face not only an almost certain probability of denial, but also an almost certain placement of the foreign spouse in removal proceedings, with a high risk that the foreign spouse will be ordered deported in immigration court. The couple would therefore have to be willing and able to mount a fight, taking the case to the Federal Courts.

For now, it is best if the foreign spouse maintains a valid non-immigrant status, if possible, until DOMA is finally dealt the death blow it deserves.

If the foreign spouse has a minimum of a Bachelor's degree or its equivalent, an H-1B visa might be possible. If the foreign spouse is entrepreneurial, an E-2 Investor visa might be possible.

Also possible, though not without risk, would be an F-1 Student Visa. Such a visa could eventually lead to an H-1B visa.

Finally, USCIS and the Department of State have historically permitted B-2 visas for same-sex couples. The problem with the B-2 visa is htat it requires a non-immigrant intent, which translates into having a home outside the US.

The speed with which DOMA would be overturned, and for USCIS to start approving petitions for same-sex spouses is hard to predict, and could conceivably take another five to ten years.

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