Since the Windsor v. United States decision striking down the Defense of Marriage Act (“DOMA”), many people have become familiar with the immigrant benefits for same-sex couples married in jurisdictions that recognize marriage equality, such as spousal benefits for married couples. But under the Immigration and Nationality Act, there are dozens more benefits available to married couples than the run-of-the-mill marriage-based “green card.” The following is a non-inclusive sampling of some of the benefits now available to couples:
1. Fiancé/Fiancée Benefits – What comes before gay marriage? Gay engagements, of course! For those dual-national couples that have been residing in different countries and not yet legally married, fiancé/fiancée benefits are available to same-sex couples now. Immigration lawyers are routinely filing Form I-129F petitions for those couples that have not yet married in a jurisdiction that recognizes marriage equality.
2. Non-Immigrant Benefits – There exists an entire alphabet soup of visas for people to come to the United States, generally for some sort of employment purpose, and we should keep in mind that not all same-sex couples are dual nationals. For example, the H-1B visa is a very common visa issued to specialty workers coming to the United States for a six-year period. In recent years, long-term domestic partners could qualify for B-2 visa status, as visitors for pleasure. Now, since the Windsor decision, same-sex spouses can qualify for H-4 visas, as spouses or derivatives on the H-1B visa. H-4 visa holders are still not authorized to work, but generally find it easier to obtain drivers licenses while residing in the United States. There are a variety of derivative visa benefits for other employment-based non-immigrant visas, as well.
3. VAWA Benefits – Married victims of domestic violence can qualify for either deferred action or residency under the Violence Against Women Act (“VAWA”). A bit of a misnomer, VAWA immigration benefits are available to married victims of domestic violence regardless of their gender, when the abusing spouse is either a United States citizen or lawful permanent resident, or when the foreign national is the other parent of an abused child and the abuser is a United States citizen or lawful permanent resident. Following the Windsor decision, VAWA benefits are available to those same-sex spouses who have fallen victims of physical abuse or extreme emotional cruelty by their United States citizen or lawful permanent resident spouses.
4. Derivative Immigrant Beneficiaries – Aside from spouses of United States citizens and lawful permanent residents being obvious beneficiaries of the Supreme Court’s Windsor decision, other derivative benefits apply under the Immigration and Nationality Act, as well. In family-based and employment-based immigrant visas, same-sex spouses are also recognized as derivative beneficiaries, as are the children and stepchildren created of the relationship. For example, when the priority date becomes current for a sibling of a United States citizen comes current, that sibling’s entire family, including the same-sex spouse, becomes eligible to immigrate to the United States, as well. Another example is when an employer sponsors a skilled worker or professional for an EB-3 visa, the same-sex spouse likewise becomes eligible as a derivative on that visa petition.
5. Cancellation of Removal – When an undocumented foreign national is being removed or deported from the United States, their removal may be cancelled and their status may be adjusted to that of a lawful permanent resident when they have satisfied to the Immigration Judge that, among other things, their expulsion from the United States would cause an “exceptional and extremely unusual hardship” to their United States citizen or lawful permanent resident spouse, parent, or child. Now that marriage equality is recognized on a federal level, both the definition of “spouse” and “child” are affected in that federal law will recognize the same-sex spouse for cancellation of removal purposes, as well as a stepchild relationship created by the union. Furthermore, the high standard of “exceptional and extremely unusual hardship” may be easier to reach in some cases now as the type of hardship a gay spouse might suffer in another country is much more likely to be exceptional and extremely unusual, depending on the country conditions of that foreign country and the treatment of LGBT persons there. If there are children of the relationship, the treatment of the entire family and the home country’s views and/or stigma on a gay or lesbian couple raising children could also be demonstrated as additional hardship. And even further, when the United States citizen or lawful permanent resident spouse is also HIV+, the Immigration Judge will also evaluate how the HIV status and treatment in the other country might impact their hardship, as well.
6. Asylum Derivatives – Persons seeking asylum in the United States based on their sexual orientation, or on other bases, would also be able to have their spouses admitted to the United States as asylee derivatives, as well. An asylum derivative would enjoy the same rights and privileges as the principal asylee, including employment authorization and the opportunity to apply for lawful permanent residency one year after admission, but would not be required to present their own case for persecution to obtain the benefit. Prior to the Windsor decision, if a same-sex couple were fleeing persecution in their home country, seeking refuge in the United States, each spouse would have to file their own independent case for asylum in the United States and be granted separately. Should either spouse have not been able to make their case, this would have been fatal to the couple remaining together. Now, only one spouse has to make their case and the other spouse would be admitted as a derivative on the principal asylee’s application.
The Windsor decision opened the door to a myriad of benefits for LGBT persons under the Immigration and Nationality Act by placing same-sex married couple on the same playing field as their opposite-sex counterparts. The above is only a sampling of some of those benefits. Prior to the Supreme Court’s decision, it was much more difficult to put together a sound strategy for LGBT couples wishing to remain together despite rather difficult laws. Today, in this post-DOMA world, options are plentiful.