Washington State appears poised in the next few days to be the seventh state in the nation to legalize same-sex marriage. It would go into effect on June 7, 2012. Assuming expected legal and referendum challenges fail, what would that mean for immigrant couples?

Visas and Green Cards for Binational Couples

Unfortunately, it will still be impossible to obtain a green card or permanent residence through sponsorship by a gay or lesbian US citizen or permanent resident spouse until Congress repeals the Defense Against Marriage Act (DOMA). DOMA prohibits the federal government from recognizing same-sex marriage for the purpose of marriage-based green cards. Because who can immigrate in what category is statutory, the Obama administration is not in a position to deviate from the existing spouse sponsorship statute even though his administration is not defending DOMA in some litigation. Such an important change to the marriage based immigration statute requires an act of Congress, and this Congress is not likely to repeal DOMA.

Visas for Dual Foreign National Couples

In the case where both partners in a couple are foreign nationals, for temporary visas, same-sex partners and spouses are not specifically recognized as dependents where one partner qualifies for a specific temporary business, family or student visa. Therefore, both partners have to qualify individually for their own visa types. However, there are some policy memos and provisions in the State Department’s Foreign Affairs Manual that allow certain qualifying partners to come to the U.S. with the principal visa holders. The most frequently used visa for non-principal partners or spouses is the B-1/B-2 tourist visa. However, it is limited as to length of stay and ability to work is not authorized. These and other lesser known provisions are described in an earlier blog post at “Impact of DOMA on Bi-National Couples.”

For dual foreign national couples seeking to immigrate permanently, the law presently does not allow the non-principal partner to qualify as a dependent. For example, if one partner qualifies for a business based green card, the other partner will need to qualify for his or her own green card category or may have to rely upon the restrictions of other temporary visas.

Binational Couples Where the Foreign Partner/Spouse is Out of Status
There are some avenues for relief from removal proceedings where an individual has a US citizen or permanent resident partner. They include cancellation of removal, asylum and various types of waivers of inadmissibility or deportability. None of them specifically allow consideration of the hardships to gay or lesbian US citizen or permanent resident spouses/partners. However, their hardships can come up in the exercise of discretion or possibly in relation to other citizen or green card qualifying relatives for whom hardship can be shown. Recently, there have been a few cases in which Immigration Judges have allowed consideration of the hardships to gay partners or spouses as a matter of discretion.

Depending upon where the immigrant spouse/partner is from, there could be a claim to asylum if the foreign national was or would be persecuted in the home country on account of membership in a particular social group, religion or political opinion as it relates to gay rights or sexual orientation. There are also some country specific programs that allow for relief from removal.

Prosecutorial discretion is another way in which same-sex partners or spouses may receive some relief from removal as one factor to consider among others. Prosecutorial discretion has to do with whether the immigration authorities will weigh the good facts with the bad facts in deciding whether to arrest, detain, prosecute for removal, or carry out a removal order. Although not specifically listed as one of the humanitarian factors to consider, hardship to a US citizen or permanent resident partner or spouse, when combined with other hardships, might on a case-by-case basis, result in the favorable exercise of discretion such as administrative closure of the case, deferred action or other types of procedures. Presently, immigration judges and government counsel are going through their cases around the country. This may or may not be in the individual’s interests depending upon the facts in the case and likelihood of success on potential applications for relief from removal. See the earlier blog post, Prosecutorial Discretion Criteria: Questions Abound.

The Immigration Equality website explains all of these options in more detail. There is an excellent Q&A as well. Couples seeking further information based on their own specific fact situation, should seek qualified immigration counsel, as everyone’s situation is different. As a Seattle immigration attorney, I review extensively and holistically prospective clients’ detailed education and work history, family situation, job offers and career goals, travel and work needs, entrepreneurial and/or investment potential, family hardships, foreign country conditions, immigration history, and the couple’s goals and priorities.