Throughout the history of the U.S. immigration system, a legal marriage was categorically as a union between a man and a woman. For that reason, members of same-sex couples could not petition for their immigrant spouses. While marrying a same-sex partner in the U.S. posed challenges in the past, immigration laws effectively shut out the possibility of green cards for foreign spouses in same-sex couples. It took a U.S. Supreme Court decision in 2013 (U.S. v. Windsor) and the historic ruling last year in Obergefell v. Hodges to solidify the rightful place of this long-awaited immigration benefit for same-sex couples. Upon request, U.S. Citizenship and Immigration Services is reviewing and reopening petitions denied before the federal Defense of Marriage Act was overturned in Windsor, without additional charge.
Now that the expanded definition of marriage for federal immigration purposes is nearing a three-year anniversary, it is necessary to reflect on the challenges that exist in obtaining these new benefits.
When people first learned about the new immigration benefit, I received phone calls from people who were fearful and could not believe that they could actually apply for a green card for a same-sex spouse. These potential clients sometimes refused to give their names, and many never actually came into my office. Initially, there were many fears and uncertainties about the practical implications of petitioning for a green card for a same-sex spouse.
Even now, same-sex couples struggle with what it means to access this immigration benefit, given the challenges that are not commonplace with traditional green card applications.
For instance, marriage-based green card applications require a showing of a good-faith marriage when the applicant spouses have been married for two years or less, to overcome a legal presumption of marriage fraud. Marriage fraud in this context is when the Immigration Service finds that the couple engaged in a marriage, not for the purpose of starting a family, but rather to obtain a green card.
Because same-sex marriage was legalized nationwide only last year, many same-sex couples will likely fall into the "presumptive marriage fraud" category based on a recent legal marriage. This creates a greater burden for same-sex couples because they have to submit proof showing, among other things, cohabitation, joint bank accounts, joint insurance policies, children within the marriage, and family and vacation pictures, along with other documents that show they have been in a legitimate relationship, essentially holding themselves out as a couple.
For opposite-sex spouses, overcoming the presumption is often easier because the couple did not have to deal with the personal and public stigma that has traditionally been associated with same-sex partnership. On the other hand, many same-sex couples feel compelled to keep their partnerships hidden or at least not openly discussed with family members, coworkers, and society at large. Having a secret relationship will reduce the proof of a good-faith relationship because the evidence depends on that very openness and how the spouses have presented themselves in public. An attempt to dodge such stigmas poses obstacles to having a traditional wedding photo album with your parents and other family members as well as declarations from coworkers and friends discussing holiday events that included your spouse — and believe it or not, those really matter in trying to obtain a green card when there is a presumption of marriage fraud.
Another concern is the threat of being denied or unfairly burdened due to perceived discrimination against same-sex marriage. It is great that public opinion in our country has shifted to support same-sex marriage, but that does not mean that immigration officers or other government agents who review and adjudicate the petitions are automatically immune from the often unconscious biases that enabled discriminatory laws (e.g., DOMA) to begin with. It is difficult to quantify how this perceived discrimination plays out in practice, but for LGBT applicants, it is a concern.
Marriage-based green cards are the most salient examples, but there are a number of special petitions that present particular challenges to LGBT people, like the U visa for victims of crime (including rape, assault and domestic violence) that allows for undocumented people to petition for a visa when they assist law enforcement. I recall a case in which the applicant was a transgender woman who tried to apply for a visa as a victim of a violent crime, and we needed a law enforcement detective’s signature to confirm that she was helpful to the police in their investigation. The client told me beforehand that the detective in the case was clearly prejudiced against her as he interviewed her about the violent crime she suffered. The agent kept asking her whether she was actually a man, something that the victim chose not to disclose openly. Sure enough, I had to fight the detective for months as to why he would not certify her application, and he eventually admitted his conclusion: that my client was a prostitute who was beaten by the perpetrator in a "fight for territory" and thus she was not a helpful victim who should benefit from this special visa. Of course, his stated conclusion should not have bearing on whether or not my client reported the crime she suffered and gave information helpful to the investigation, as required for U visa eligibility. But nonetheless, it shows how bias can pose obstacles for LGBT applicants in a way that may not be quantifiable, but that does not mean it should be overlooked.
Awareness and information about all of the immigrations benefits available must be a focus for outreach within LGBT communities to ensure that people know about the benefits available not just to LGBT people who are petitioned by U.S. citizens, but also to undocumented LGBT applicants. Furthermore, bringing awareness to examples of possible prejudice in the application process is the only way to help combat the challenges in obtaining immigration benefits.