Same-sex marriage is legal in some states, including New York as of earlier this month. However, same-sex partners who are legally married are not receiving legal permanent residency on account of their gender. In other words, if a foreign woman marries a U.S. citizen man, she is eligible to become a legal permanent resident. If a foreign man legally marries a U.S. citizen man, Immigration is denying the legal permanent residency because of a federal law known as the Defense of Marriage Act (DOMA). DOMA explicitly defines marriage as the civil union of one man and one woman. Essentially, Congress refuses to recognize same-sex marriage.
Today, President Obama repeated that he believes DOMA is unconstitutional and for this reason his administration will not defend the law. Despite this, there is no indication that Immigration has changed its current policy.
Many couples in same-sex marriages find themselves in a difficult position because the idea of obtaining federal benefits through a same-sex marriage is currently only a theory and not yet a practical possibility. Right now, it is generally not a good idea for couples to seek immigration benefits based on their marriage where the foreign national is without legal authorization because the application will be denied.
However, if the foreign national is legally in the United States on a work visa – such as an H-1B or L status – and the U.S. citizen is willing to challenge the Citizenship and Immigration Service in federal court, the couple should see an attorney about filing the case. Various civil rights groups provide support to immigration attorneys on these cases. Again, such a strategy should be considered only if the foreign national does not run the risk of deportation.
If the foreign national were already in removal proceedings before an Immigration Judge, marriage to a long-term partner might serve as good cause for a continuance of the case pending the outcome of the DOMA lawsuit. A same-sex marriage is also an important part of an asylum case where persons are persecuted on account of their sexual preference.
