Recently the Supreme Court issued the landmark decision of ‘Obergefell v. Hodges’ decision. In celebration of that decision, it is important to understand its apparent and underlying effects. The ‘Obergefell’ decision specifically represents a legal victory for many documented and undocumented LGBTQ immigrants living in states where gay marriages were once prohibited by law.
For immigrant couples, prior to the ‘Obergefell’ decision, only couples who were married in states recognizing same-sex marriage could seek immigration relief based upon their relationship. This is because the 2013 United States Supreme Court case of ‘United States v. Windsor’ only prohibited the federal government from refusing to recognize same-sex marriages. Therefore, same-sex immigrant couples who were married in states recognizing same sex marriage could petition for immigration relief based upon that immediate family relationship. In contrast, same-sex couples similarly situated in states not recognizing gay marriage could not petition for immigration relief based upon their relationship. While couples residing in states could travel to other states in order to be married and submit immigration petitions based upon the marriage, for many couples this option was extremely burdensome as it was cost prohibitive or impossible due to health concerns.
The ‘Obergefell’ decision now has broadened the scope of the ‘Windsor’ decision, as it forbids state prohibitions against same-sex marriage and also requires that states not recognizing same sex marriage, recognize valid same-sex marriages from other states. As a result, all same-sex couples hold a right to marry. Now LGBT couples seeking immigration relief based upon their relationship may be married in any state and may then seek immigration relief based upon the marriage relationship. Therefore ‘Bi-national’ couples- those with a U.S. Citizen or Lawful Permanent Resident and a Non-Citizen foreign national may be married and petition the federal government to grant lawful permanent resident status to the non-citizen spouse. To be clear, this opportunity is only available when at least one spouse is a U.S. Citizen or Lawful Permanent Resident.
However there are some additional serious caveats. A couple of whom both are undocumented as to immigration status may of course be married. However, neither will have the proper legal status to petition for a spouse to be be granted lawful immigration status based upon their marriage. This is because, in order to petition for a spouse based on a marriage- the petitioning spouse must either be a U.S. Citizen or a Lawful Permanent Resident. Facts may differ and residency may perhaps be gained through another immediate family member- but not a spouse. As a matter of practicality, this of course places at grave risk many immigrant families. Family unity is key to many facets of societal life. The Deferred Action For Parents of Americans (DAPA) Program is especially important to family cohesion and unity. The program provides many ancillary societal and monetary benefits. Importantly however, the program would provide an viable opportunity for stability of family unity, as the undocumented parents may petition for lawful immigration status based on a parental relationship with a US citizen or lawful permanent resident child. The ‘Texas’ case is of course, held up in the federal courts. After denying the United States’ motion to stay pending appeal, the U.S. Fifth Circuit Court of Appeals recently heard the case ‘Texas v. United States’ on the merits. We will keep you updated regarding the decision and its effects.
For more information regarding immigration and marriage equality please visit: http://www.immigrationequality.org/
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