Immigrating Based on Same-Sex Marriage: More USCIS Q&A

Same_Sex_Immigration_BenefitsUSCIS has answered more questions about immigration based on same-sex marriage. Here are some of the answers provided in a meeting with the American Immigration Lawyers Association (AILA) on Oct. 23, 2013:

Q1. Often, individuals in same sex marriages will not have the same type of documentation as individuals in other types of marriages. For example, depending on the state, an individual’s same-sex spouse might not be able to name his or her partner as a beneficiary to health insurance or retirement funds, or individuals might not have gathered photographs together out of fear of being discovered by family members or co-workers who do not approve. What type of training have USCIS officers received with regards to recognizing bona-fide same-sex marriages?

Response: USCIS routinely decides immigration cases that involve a variety of unique situations and backgrounds. As a result, our officers are trained to be sensitive to everyone’s individual situation. USCIS is currently developing materials to specifically train our officers about recent changes that affect the processing of marriage-based petitions, including documentary evidence in the context of same-sex marriages.

Q3. Under 8 CFR §204.2(b)(1), the surviving spouse of a U.S. citizen may self-petition under
INA §204(l) within two years of the death of the U.S. citizen spouse. This section of the
regulations was “backdated” to allow an extended filing period for spouses who were
widowed more than two years before the regulation was effective. Given that DOMA
prohibited the approval of a petition until the Supreme Court declared Section 3
unconstitutional, will USCIS consider allowing an extended filing period for survivors whose spouses died more than two years ago, but who were prohibited by DOMA from having a petition approved?

Response: At this time, we are unable to provide [an] answer[]. We are working to develop additional guidance to supplement that which we have already published, and expect to answer these and other important Windsor-related questions in the near future.

Q6. In cases where foreign nationals traveled in and out of the United States on a nonimmigrant visa, but also maintained a relationship with a same-sex partner or spouse who resided in the United States, please confirm that such foreign nationals won’t be held to the traditional standard regarding nonimmigrant intent given the unique circumstances facing these individuals prior to the Supreme Court’s decision in Windsor?

Response: Decisions with respect to nonimmigrant intent are made on a case-by-case basis. While it is often more difficult for an individual with a spouse in the U.S. to establish nonimmigrant intent, both same-sex and opposite-sex partners and spouses regularly demonstrate nonimmigrant intent, are issued visas, and travel in and out of the U.S. USCIS considers the totality of the circumstances in rendering decisions.

Q7. If a same-sex foreign national spouse listed him/herself as “single” on a visa application (perhaps as an F-1 student) because the United States did not recognize their marital relationship with someone of the same sex, please confirm that misrepresentation/fraud won’t be an issue given the unique circumstances that same-sex couples faced pre-Windsor?

Response: Listing marital status as “single” on an immigration form before June 26, 2013, would not by itself be considered to have been a misrepresentation if the individual was in a same-sex marriage not recognized for immigration purposes under the DOMA at that time.



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