Immigration Issues Affecting Binational LGBT Couples

 Posted on May 12, 2014 in Immigration

With same-sex marriage legalized in some states, but not others, confusion abounds relating to same-sex marriage in the immigration context. Seventeen states have legalized same-sex marriage, and Illinois is one of them. Where then does that leave Illinois same-sex couples in which one partner is not a U.S. citizen (“binational” couples)?

History

In even the very recent past, same-sex partners of U.S. citizens and permanent residents were confronted by the possibility of removal (deportation) because of the absence of legal marriage rights. This situation often had traumatic effects upon families, and was inconsistent with the principle of family unification that underpins U.S. immigration. While heterosexual U.S. citizens and permanent residents were able to sponsor their spouses for immigration purposes, LGBT U.S. citizens and permanent residents were not.

Federal Level

In the 2013 case United States v. Windsor, the Supreme Court struck down the Defense of Marriage Act (DOMA). The court wrote that “DOMA seeks to injure the very class (New York) seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the federal government. See U.S. Const., Amdt. 5; Boiling v. Sharpe, 347 U.S. 497.” What this means is that, for the first time, legal same-sex marriages are recognized by the U.S. government at the federal level. At that level, then, binational LGBT couples stand on equal footing with binational heterosexual couples.

State Level

In Illinois, civil same-sex marriage was legalized in November 2013. As of that time, the state began issuing marriage licenses to couples where one partner is terminally ill. Shortly thereafter, in February 2014, U.S. District Judge Sharon Johnson Coleman ruled that same-sex couples in Cook County (which includes Chicago) can marry. Marriage licenses will be available to all other same-sex couples in June 2014.

The Future

As a result of the legalization of civil same-sex marriage in Illinois, binational same-sex couples who wed in Illinois are eligible to apply for green cards and family-based visas on behalf of their spouses. Applicants will no longer be denied solely on the basis of the same-sex status of their marriage. Moreover, applicants who were previously denied solely on the basis of the same-sex status of their marriage may be able to reopen their cases at no additional cost.

Protect Your Rights

The nature of a marriage is but one facet of the complex immigration context. Any binational couple seeking marriage-based benefits must comply with existing application, interview, and marriage duration requirements. If you need help understanding your rights, navigating forms, or securing the protection of the laws, contact the immigration lawyers at Mevorah & Giglio Law Offices. We can help you in any matter involving immigration law.