Category Archives: LGBT Immigration Rights

With Immigration Reform Comatose, At Least the Visa Lottery Remains!

enter to winAll reports seem to say that Comprehensive Immigration Reform (CIR) — which looked to be as close to becoming a reality as any similar efforts have in recent years — hit a brick wall as soon as it was passed from the Senate to the House of Representatives. (Are we surprised?) The current forecast for action on the bill is “none.” Although that will leave many people disappointed — including many with close ties to the U.S., as in already living, working, and raising families here — there’s an odd silver lining.

A random assortment of people from around the world with little or no previous connection to the U.S. will continue to receive U.S. green cards through the diversity visa lottery, which CIR had put on the chopping block! Well, perhaps not completely random. Despite the “lottery” moniker, applicants must show that they have achieved a certain level of education. And they may need the wherewithal to hire an attorney to help complete the process if they win, because the State Department always declares more “winners” than it actually has visas, and it becomes a race to finish the process before the end of the relevant fiscal year. See the articles on the “Diversity Visa Lottery Green Cards” page of Nolo’s website for details — and to help avoid the eventual scams that will pop up as they do every year.

By the way, there’s another bright spot in this year’s lottery. Same-sex spouses will now be able to accompany the winners and receive a U.S. green card, provided their marriage is legally recognized in the country or jurisdiction where it took place.

Get ready: The application period opens October 1!

Lottery Winners in Same-Sex Marriages: Don’t Be Deterred by Bad Advice!

If you won this year’s Diversity Visa lottery, and are working on getting a green card or immigrant visa to the U.S., and you’re part of a same-sex couple, you were probably excited to hear of the U.S. Supreme Court’s Windsor decision. By overturning a major portion of the federal Defense of Marriage Act (DOMA), this cleared the way for same-sex couples in legally recognized marriages (whether they occurred in the U.S. or another country) to enjoy immigration as well as other benefits.

There’s just one problem: The U.S. State Department and other immigration authorities have been classically slow to catch on. Even after the Windsor decision, some of them were reportedly advising would-be Diversity Visa applicants that no, their same-sex marriages don’t count, and they can’t bring their spouses to the United States.

That’s wrong advice. The government memos are supposedly flying, and hopefully by now DV visa applicants are not being steered in the wrong direction. But if you gave up on bringing your same-sex partner before, it’s time for some quick action now (and ideally a call to an attorney). Even if you’re not married yet, it’s not too late, as described in, “Won the Diversity Visa Lottery: Can I marry my same-sex partner and bring her to the U.S.?

Gay Man From Cameroon Successfully Appeals Claim for Withholding of Removal

map-cameroonGood news on LGBT immigration cases just keeps rolling in. A recently come-to-light Board of Immigration Appeals (B.I.A.) decision (unpublished, issued in May of 2013) practically scolded the immigration judge (IJ) for denying the case of a gay man from Cameroon.

The applicant had applied for asylum and withholding of deportation based on his sexual orientation, past victimization in the form of sexual assaults, and Cameroon’s criminalization of homosexuality.

The man submitted his asylum claim far too late — many years after the one-year deadline on applying for this remedy, unfortunately. That left the B.I.A. with no apparent choice but to uphold the IJ’s denial of the asylum part of the application. But that still left the man’s claim for withholding of removal, a last-ditch remedy protecting would-be asylees from deportation. (Withholding does not, however, lead to a green card like asylum does.)

To be eligible for withholding of removal, an applicant must prove that it’s more likely than not that he would be persecuted or tortured upon return to his home country. The IJ denied this applicant based on a finding that his testimony was implausible and inconsistent, and therefore not credible (believable). Here’s where things get interesting.

A classic inconsistency in an asylum case would be, for instance, where an applicant states in his Form I-589 application for asylum that his sister was threatened and his brother was killed, but testifies in court that his sister was killed and his brother threatened. No matter how horrific the facts, a judge could hardly grant asylum to someone who couldn’t get key aspects of his story straight. Mixing up dates of critical events is also a reason for some applicants to be denied on credibility grounds.

But the inconsistencies noted by the IJ in this man’s case (according to the B.I.A.’s characterization of them) were far more subtle, and included certain judgments about human behavior that the B.I.A. called “erroneous” and I might call “out on a limb.”

For instance, the IJ couldn’t believe that the applicant “could not pinpoint the time that he realized that he was homosexual.” Before I start spluttering about how many people can remember the moment when they determined their own sexuality one way or another, I’ll simply repeat the B.I.A’s statement that this finding was “speculative, at best, and is an inappropriate consideration in a credibility analysis.” The applicant did, after all (quoting the B.I.A. again) “repeatedly state[] that he did not know and that he was still a child when many of these events occurred.”

The IJ also said that “it was illogical for his parents to acknowledge that he told them he was homosexual, but continue to pressure him to pursue heterosexual relationships.” Well, surely they wouldn’t be the first parents to hold onto every last hope that their child would do what society expects! Actually, the B.I.A. said it just as well: “The Immigration Judge provided no support for his belief that parents could not be supportive, yet  pressure their child to pursue a more traditional and acceptable way of life.”

This case isn’t completely sewn up yet (as far as I know). The B.I.A. remanded it back to the Immigration Judge for a final decision, giving the Department of Homeland Security a chance to run some security checks. But based on the B.I.A.’s finding, there should at last be some good news coming to this applicant.

Helpful NYT Chart on Federal Benefits Available to Same-Sex Couples

OLYMPUS DIGITAL CAMERANice graphics, nice summary: If you’re a member of a gay couple, you’ll want to check out this New York Times explanation of how the Supreme Court’s recent decision striking down major portions of the federal Defense of Marriage Act (DOMA) affects your rights depending on where in the U.S. you live.

The article’s statement that “Your spouse can apply for a permanent resident visa, known as a green card, for you,” however, needs a footnote.

In terms of basic eligibility rights, it’s absolutely true. But because of various penalties that primarily affect people who entered the U.S. without inspection (EWI, in immigration law lingo), actually claiming that green card may not be so easy. See Nolo’s article, “Entered the U.S. Illegally and Married a U.S. Citizen: What Are the Immigration Options?” for more information.

 

First Green Cards to Same-Sex Couples Being Issued!

ringsAs announced in an article by Julia Preston in the June 30 New York Times, U.S. Citizenship and Immigration Services (USCIS) has already begun approving marriage-based green cards for legally married same-sex couples. (We should expect an announcement from the Guinness Book of World Records next, because I think this is the fastest that this gigantoid bureaucracy has moved on anything, ever. The couple was surprised. Their lawyer was surprised.)

The important thing to realize about this action, however, is that the couple’s application was filed previous to the Supreme Court decision overturning core portions of the federal Defense of Marriage Act, or DOMA (which had created the bar to same-sex-marriage-based green cards in the first place). Apparently a number of same-sex couples anticipated DOMA’s eventual demise, no doubt based on the Obama Administration’s 2011 declaration that DOMA was unconstitutional and shouldn’t be enforced, and they submitted visa petition or green card applications in advance of any certainty that they would be approved. (Just one of those individual acts of courage that adds up to a movement . . . .) The couple in the article submitted a green card application last February.

What this recent USCIS action doesn’t mean is that the agency is prepared for new applications right this minute, or will act this quickly on them. The normal turnaround for an I-130 (the visa petition that the U.S. citizen or permanent resident would file if the immigrant is either overseas or is in the U.S. but ineligible to use the “adjustment of status” procedure, most likely because of an illegal entry), is about six months. (You can view USCIS’s not entirely reliable time estimates on its Case Status page.)

The normal turnaround time when the immigrant is already in the U.S. AND is eligible to use the U.S.-based adjustment of status procedure, in which case the U.S. citizen spouse can file an I-130 visa petition together with the rest of the green card packet, depends on backups at their local USCIS District Office. This process usually also takes several months before the couple is called in for the personal interview at which the green card should be approved.

Add to all this the fact that USCIS hasn’t issued any guidelines about how it will consider same-sex marriage cases and, if you’re in a same-sex binational married couple, you’ve got good reasons to hold off and consult a lawyer before actually submitting anything. At least a few days. We need to make sure no unhappy surprises turn up in the guidelines USCIS issues.

There’s reason to hope that the guidelines will be fairly straightforward, however. USCIS has promised to issue them promptly, and Janet Napolitano stated today that, “. . . 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.”

No matter what, now is a good time to start figuring out what you’ll need for the green card application and to get the various forms and documents ready. You’ll find information on marriage-based visas and green cards here on Nolo’s website.

SCOTUS, POTUS, and DOMA: Victory for Same-Sex Binational Couples

gaywedNice quote from the President, regarding today’s Supreme Court decision in U.S. v. Windsor striking down the bulk of the federal Defense of Marriage Act (DOMA), which had defined marriage as solely between a man and a woman (and thereby blocked all manner of federal rights and benefits to anyone who didn’t fit the definition):

“I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. . . . I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”

So, it looks like it’s full steam ahead for implementing this law in the immigration context. Up until now, same-sex marriages didn’t count for a thing if the couple wanted to obtain a green card or visa for the foreign-born person. Today, these marriages do count, just the same as anyone else’s. All that matters is that they were legal in the state or country where they took place (so same-sex couples who live in places where same-sex marriage is NOT legal will have to find someplace else to get married in order to take advantage of this ruling).

Already, a New York immigration judge has reportedly halted the deportation proceedings of a gay Colombian man who is legally married to a U.S. citizen. Another male couple in New York, scheduled for a marriage-based green card interview with U.S. Citizenship and Immigration Services (USCIS) yesterday, had their interview postponed until after the DOMA decision — with hopefully an approval on the horizon. (It must have taken some guts to apply for the green card in the first place, knowing that if DOMA was upheld, their case would be denied and the noncitizen could be placed in deportation proceedings.)

The immigration bar has, so far, come up with no reasons why same-sex immigrant couples shouldn’t start filing their applications for green cards right away — with the small caveat that this process is harder than you might think (even for opposite-sex couples), and we still don’t know how quickly USCIS will actually adapt to this new regime. Don’t be surprised if you get some weird requests for evidence during the application process.

This decision should also allow noncitizens coming to the U.S. on temporary visas (H-1B, L-1, J-1, and so on) to obtain derivative visas for their same-sex spouses. (Here, at least, the U.S. government showed some flexibility in the past, by issuing the same-sex spouse a tourist, B-2 visa.)

Scheduling an in-person consult with an immigration attorney is an excellent idea.

For more information, see Nolo’s update, “Same-Sex Marriage Now a Basis for U.S. Lawful Permanent Residence (a Green Card).”

Is There Still a Chance for Same-Sex Couples to Win Immigration Rights in the Reform Bill?

gemA lot of interesting immigration-related matters have been hitting my email inbox lately. First there was this video on Upworthy, with the heading, “I’d Like To Think I’m An Informed Straight Ally, But I’m Embarrassed I Didn’t Know This.” If Brandon didn’t know, I’m going to guess a few other people also don’t know the following:

Regardless of its legality in the state or country where it took place, a same-sex marriage still, today, does not offer the noncitizen a path to a U.S. green card. And there’s precious little the couple can do to get the noncitizen any other long-term visa or right to stay in the U.S., either. The welcome mat is out for heterosexual married couples — potentially even if they met online a few months ago and have barely spoken in person, one might note — but federal law draws a bright line on this one. The video posted on Upworthy gives a wrenching look at an American/British male married couple who are trying to deal with the all-too-brief amounts of time that U.S. law lets them spend together.

It would be so easy to fix this: In fact, the language proposed by Senator Patrick Leahy as an amendment to the draft immigration reform bill is a model of simplicity, stating “an individual shall be considered a ‘spouse’ and a marriage shall be considered a ‘marriage’ for the purposes of this Act if (1) the marriage of the individual is valid in the State in which the marriage was entered into; or (2) in the case of a marriage entered into outside of any State, the marriage is valid in the place in which the marriage was entered into and the marriage could have been entered into in a State.’’

A few weeks ago, however, the headlines were all about the disappointment of LGBT advocates as Leahy announced that he was withdrawing this amendment, in the interests of passing the bill as a whole.

Yet according to the blogosphere and the American Immigration Lawyers Association, he has refiled it. And according to another email I received today, from Emily Saliers of the Indigo Girls, a briefing is being held for Congressional staffers today at which she and other LGBT advocates will testify to why immigration reform “must include all families.” Emily says, “My partner Tristin is from Canada. We met nearly ten years ago when Tristin was serving as a substitute tour manager for the Indigo Girls. We soon became friends and then slowly fell in love. Even though we are a completely committed family (which includes our six-month old daughter Cleo!), there is no way for me to sponsor Tristin for a green card to keep our family together. This is the story I will be sharing on Capitol Hill today.”

You’d think I’d be humming an Indigo Girls tune after writing this blog. (And I’d be happy to, really.) But the song going through my head is actually Lenny Kravitz’s “It Ain’t Over Til It’s Over.”

Proposed Immigration Bill Still Needs Provision for Gay and Lesbian Couples

double_rainbowThe current Senate draft of a comprehensive immigration reform bill contains provisions to help undocumented farmworkers and students, as well as would-be immigrants whose merits earn them a significant number of points — but nothing for gay and lesbians.

In particular, the draft doesn’t address the problem of gay and lesbian couples who are legally married under the laws of the particular U.S. state or foreign country where they registered or held a  ceremony, but nevertheless continue to be denied a marriage-based green card for the noncitizen spouse under U.S. immigration law. (The legal reason for that is the federal Defense of Marriage Act, or DOMA, which is awaiting an opinion from the U.S. Supreme Court.)

What’s the harm in this? According to testimony to the Senate Committee by Laura Lichter, President of the American Immigration Lawyers Association (AILA), “more than 36,000 couples are affected by this form of discrimination, and nearly half of them are households raising children.” Lichter added that, “Many gay and lesbian Americans in binational relationships have aging parents and must make difficult decisions between managing their parents’ health or remaining with their partners. . . Many Fortune 500 companies have lost skilled Americans to foreign competitors because of this issue . . . For many, the limited options mean having to choose between unconscionable separation, a life without lawful immigration status, or relocating the entire family outside the U.S.”

The bill may may yet address such issues, however, according to reports from CQ Roll Call, via San Francisco’s Immigrant Legal Resource Center. The draft Senate bill is currently being scrutinized and marked up by the Senate Judiciary Committee. Several Democrats on the committee have stated that they intend to introduce amendments allowing U.S. citizens to petition for (sponsor) same-sex partners for visas in the same manner that they are legally allowed to utilize for opposite-sex spouses under existing law.

Whether those amendments will survive the entire process of turning the bill into law, however, is in doubt. Some experts believe that they will be removed again in the course of negotiations, in order to ensure the passage of the bill as a whole. Stay tuned . . . .

And by the way, the legal situation is a bit different for couples in which one has undergone sex reassignment surgery, as described in Nolo’s Q&A, “Can a transgender spouse obtain a green card based on marriage to a U.S. citizen?