Contributed by Bryon Large, Senior Attorney
Throughout family-based immigration, applicants are frequently required to prove the familial relationship from which they are seeking benefits. This can be as easy as showing a birth certificate or DNA test to demonstrate a parent-child relationship, and this can be as complicated as demonstrating an engagement between two foreign nationals residing in separate countries where little formal evidence exists of the relationship. Same-sex couples often face a much more difficult challenge in documenting their relationships for a variety of reasons.
Lack of Recognition
Compared to their straight counterparts, same-sex couples have traditionally lacked formal recognition by governmental authorities. What seems like a trivial certificate printed on a piece of paper to many couples is, for gay couples, a yearned-for formality still unavailable by most governments. Couples that have been together for many years oftentimes have a difficult time demonstrating formal recognition of their relationship in countries which do not recognize marriage equality. Many couples seeking immigration benefits for the foreign-national spouse are finding themselves, after years together, traveling to distant jurisdictions and suddenly becoming newlyweds.
Federal benefits, including taxes, were previously unavailable to same-sex couples, regardless of where they were married. All same-sex couples, regardless of the length of their marriage, will have identified themselves as “single” for federal and state tax purposes. Reliance on tax returns as being dispositive evidence of a relationship will be misplaced in LGBT cases. Even couples who have been married for several years will be unable to produce this typically routine evidence. Additional related evidence which will likely be unavailable would be life insurance, social security benefits, and military and veterans benefits for spouses.
While it may sound cliché that some gays still live in the proverbial closet, the effort to “out” one’s self in every aspect of life can be a daunting task. It is not uncommon for straight couples to seek utilities, bank accounts, and joint liabilities together, it can be an intimidating experience for same-sex couples to venture into similar tasks. Whether actual or perceived, many gay couples find it challenging to walk into a bank together and sign on to the same bank account or subscribe to some of society’s most basic services. It’s not to say that gay couples hold back from admitting to being gay, but, rather, the fear of judgment that we have all experienced from an unfriendly clerk on the other side of the transaction. This becomes even more difficult if the couple resides in a less progressive country, state, or small town in rural America.
Many feel it easiest to take care of business alone and get the essential needs taken care of. Even more difficult is the case where a spouse or partner is shown on paperwork as a roommate, friend, or emergency contact, rather than the spouse or partner. Overcoming that second-class title to the immigration examiner may prove to be difficult to a couple applying for immigration benefits
Immigration attorneys will encourage their clients to trudge forward in this difficult area and document the relationship in the areas of finances, assets, and obligations. Such efforts to co-mingle assets and share in the burdens and responsibilities of bills and other liabilities goes a long way to proving that the couple is, in fact, in a bona fide relationship.
Few would consider gay couples not to be non-traditional. Non-traditional is essentially “the” buzzword in politically correct descriptions of same-sex couplehood. Non-traditional financial structures inside a gay relationship can frequently be less about living in the closet and more about a desire for each partner to carry their own weight. Such progressiveness is frequently seen in gay couples and non-traditional financial arrangements are predominant in the community. Gay couples are likely to be less interested in co-mingling cash and other assets and often find themselves sharing in certain expenses, but keeping other obligations separate. This leads to added complications in documenting the relationship for the immigration examiner. The couple will find themselves more likely to have to explain why their relationship is less traditional in financial benefits and obligations than they are accustomed to seeing with straight couples.
Lack of Family Support
While the perception of same-sex couples continues to evolve in society – quite progressively in the United States as of late – not every person around the world is ready to embrace the idea of attending their cousin’s gay wedding. Lack of family support can be a difficult situation to explain to an immigration examiner, particularly if they have limited experience with gay family members. And the lack of family support can be both about rejection from the family, as well as about the fear of rejection.
The fear of rejection generally stems from an LGBT person willing to “come out” to their family or desire to conceal their sexual orientation from their family. Immigration examiners are often accustomed to seeing letters of support from straight couples’ families. Such letters are likely to be missing from a gay immigrant’s file when the immigrant or his or her spouse has chosen not to share the relationship with the rest of the family. Examiners should not expect every LGBT person to “out” themselves to their family, and petitioners and beneficiaries should be able to have an expectation of privacy about their personal life.
Worse than the mere fear of rejection or the desire for privacy is the actual rejection that many in the LGBT community end up facing. Disapproving families, particularly those from more conservative cultures and/or religions, will make the documentation of family support even more challenging. It is not uncommon for somebody to reject a gay child or reject their relationship. Immigration officers investigating the bona fides of a marital union can run into serious roadblocks if they show up at a family member’s home inquiring only to be told that the family member doesn’t exist or does not want to be heard from.
Lack of Children
Common evidence of a bona fide marriage is whether children have been born to the relationship. A lack of children born to a same-sex couple is not uncommon. These little bundles of joy are noticeably missing from the majority of LGBT households, although not completely absent. The idea here is to seek alternative evidence of the relationship that what practitioners and examiners typically look to in documenting the evidence.
Straight and gay couples alike frequently find themselves struggling to identify documentary evidence of their relationship. Frequently couples will advise their attorney that the already-sparse evidence they have provided is all they are able to provide. At that point, diligent practitioners should ask clients to go through their wallets and identify accounts and memberships they may already have together. Couples should be asked to review their bank statements to look for charges that evidence their relationship. I frequently ask them to collect their junk mail in a shoebox for review for a few weeks or a couple of months. Couples may frequently find themselves receiving junk mail because their address ends up on some marketing company’s mailing list, which is excellent evidence that they reside at the same address. Finally, practitioners may consider requesting a credit report to identify accounts and addresses identified there-within.
It is far less common for LGBT couples to assume their spouse’s last name. Historically, the refusal of a wife to assume her husband’s last name would be a cause for concern before an immigration officer. While this poses less of an issue as time goes on, we expect same-sex spouses to not assume their spouse’s last name as frequently as their opposite-sex counterparts. While some couples have chosen to hyphenate names, mix names, or change names, many couples also decide to keep their last name as it was prior to the marriage.
Previous Straight Marriages
The coming out process can vary from person to person. Practitioners and examiners alike may struggle with how to perceive past marriages with members of the opposite sex or children born of opposite sex relationships. Applicants and petitioners with opposite-sex marriages in their past should be prepared to explain their pasts, as well as their coming out stories, when appropriate to do so. Because an opposite-sex relationship might be in one or both persons’ histories does not negate the bona fides of the current marriage. Every person has their own coming out story – some of which are much easier than others. And each person has their own story of coming out to themselves, or identifying themselves as LGBT. Today we live in a much more accepting society and the stories of young LGBT persons are more likely to involve identification of sexual orientation at a younger age. However, the story is not always the same for everyone and many people have not been able to fully identify themselves as LGBT until several years into an opposite-sex relationship. It is a fact of life that some marriages end after several years together – and even children born of the marriage – before one party decides to leave the marriage after identifying as LGBT.
When children have been born of a past opposite-sex relationship, it will be extremely important to include documentary evidence, particularly photographs and affidavits, of the current relationship, including the children, as appropriate.
Also related is the sometimes-forgotten “B” in LGBT. Bisexuals frequently have a difficult time identifying as lesbian or gay or straight. It is not uncommon for a bisexual male or female to enter into a long term relationship with a person of a different gender of their last partner.
Identification of sexual orientation can sometimes be difficult in the workplace, as well. Many people are not willing to disclose their sexual orientation to their employer, or list their same-sex partner or spouse as their partner or spouse. For straight couples, practitioners and examiners frequently look to who is listed as a spouse or emergency contact with a person’s employer. Furthermore, because of the lack of historical federal recognition of the marriage, as well as the current lack of state recognition in a majority of jurisdictions, people will seldom identify their spouse as a spouse on employer paperwork. Finally, the identification of one’s sexual orientation may not always be a safe career move for some individuals when the potential for negative consequences exists. Practitioners and examiners alike should keep in mind that many jurisdictions still permit employment discrimination based on sexual orientation.
Documenting same-sex relationships can be easy or difficult. It is crucial to explore the relationship and determine what evidence can be obtained and used. And, frequently more important, documenting why there is a lack of evidence in the relationship is equally important. It is important for spouses and their attorneys to think outside the box and try to determine what better quality evidence might exist. And immigration officers will also learn to adapt to how LGBT couples document their lives differently than they are accustomed to with their opposite-sex counterparts.
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