Managing Previous Opposite-Sex Relationships in Current Same-Sex Marriages

Contributed by Bryon Large, Senior Attorney

A recurring theme amongst immigration practitioners working on same-sex couple cases is how to handle previous heterosexual marriages and relationships. The concern lies with the allegation of a previous fraudulent straight marriage, particularly where immigration benefits are involved, or whether the current marriage is a sham, seeking marriage solely for an immigration benefit. Questions are likely to arise in current paperwork processing when one or both parties previously had opposite-sex relationships. Children may even have been born into that relationship.

The federal government is no longer limited to a definition of marriage that excludes same-sex couples.In short, marriage is marriage, so long as it is celebrated in a jurisdiction that recognizes the marriage.The use of the term “gay marriage” is counter-intuitive to the long-fought battle of the GLBT community, and, legally speaking, the federal government should not be differentiating between marriages based on the gender of the spouses.Possibly, comedian Liz Feldman said it best when she said, “It’s very dear to me, the issue of gay marriage.Or, as I like to call it:‘marriage.’You know, because I had lunch this afternoon, not gay lunch.I parked my car; I didn’t gay park it.”The agency has repeatedly advised that it will treat all marriages the same.We, as practitioners and applicants, should do the same.

Previous marriages, depending on the gender of the spouses, should be treated like any other previous marriage would be treated for any opposite-sex couple. A mere suspicion of obtaining immigration benefits based on a sham marriage should be treated as they would in any other situation. The government should look to the bona fides of each marriage and not spend time hashing out the sexual orientation of all of the parties involved. Likewise, practitioners and applicants should be prepared to discuss the bona fides of each marriage, and not have to worry about hashing out the sexual orientation of each of the parties. While seemingly idealistic, practitioners and applicants alike should return the government’s focus on the real issue – whether the marriage is bona fide.

People marry for a variety of reasons. It is not uncommon for a gay or lesbian to have previously been in an opposite-sex relationship or marriage, and, possibly have children born of that marriage. Many people are concerned that a previous relationship based on a different sexual orientation than the current relationship might give rise to a fraud investigation with USCIS. Petitioners and applicants should be honest and forthright with immigration authorities always, and explain, as necessary and appropriate, any questions that the adjudicator might have. Applicants and petitioners are advised to not conceal previous opposite-sex relationships, or any other fact that is relevant to the benefits sought. Oftentimes, explanations can be simply the person’s life story and coming out story, where they tried to survive in opposite-sex relationships due to personal beliefs, religious beliefs, family pressure, or other reasons.

Immigration authorities are to look to the validity of the marriage and not the viability of the marriage. Alternatively stated, immigration officers want to see that this is a “real” marriage from the beginning and not a sham marriage for the purposes of gaining an immigration benefit by fraud or deceit. Immigration authorities are not to look at whether this is a marriage that is viable, or able to remain intact for a period of time. Bad marriages or marriages that don’t work out are no less bona fide or real than marriages that last until death. For those reasons, immigration officers will look to the intent of the parties and look at relevant evidence to determine whether it is a real marriage.

Also relevant is the fact that some people, although they identify as gay or lesbian, are legitimately bisexual, even if they are not comfortable expressing it or self-identifying in that manner.Again, the focus here is on the marriage itself, not on the gender and sexual orientation of the parties to that marriage.

Essentially, whether a previous marriage or relationship was opposite-sex or same-sex, the inquiry should be to the marriage or relationship itself, not to the gender or sexual orientation of the makeup of that relationship. Applicants and adjudicators, alike, should treat a marriage as a marriage. Only by removing gender and sexual orientation from the equation will we achieve true marriage equality.