Huffpost Politics

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Mike Spradley Headshot

Breaking Down Immigration Rules for Same-Sex Binational Couples

Posted: Updated:

For the last three months I have thought about what I would write when the United States Supreme Court ruled on gay marriage. In a meeting with my editor, Joel Martins, at The Rage Monthly Magazine, we knew that with two cases before the court, there could be four possible outcomes. I also knew that one issue bothered me more than any other: the right of immigration for same-sex couples.

I had struggled with this issue for years. When I served in the U.S. Navy, many of the service members I worked with were gay or lesbian. I was frustrated that my government could say to these men and women in the armed services that they had fewer rights than someone who became a citizen the day before. When these service members were willing to lay down their lives in the service on their country, it just seemed so wrong.

I was also thankful that I was an American who also carried a British passport. I often thought I could leave the United States and seek a new life in the United Kingdom if things ever became too ugly for a liberal.

Before I go into what the ruling means for same-sex binational couples , I have to share with you what happened in San Diego in the community of Hillcrest on Wednesday, June 26, 2013.

Hillcrest is a progressive community, and whatever the verdict would be, a rally was going to take place to celebrate or protest. At 5 p.m. PDT over 7,000 community members took to the streets to celebrate the right of equality. As parents, families, sons, and daughters from all walks of life waved flags, the police and fire department cleared traffic along University Ave. Pubs and restaurants filled up that night, and many glasses were raised for a celebration like no other. After all, it's not every day a native-born American becomes a full citizen in the eyes of their government.

During the rally I ran into Lee and Simon, a gay couple. Lee is American, and Simon is a British national, so they have struggled with the immigration issue for many years and wondered how the ruling would impact them. According to Equality California, the Golden State has 7,100 binational same-sex couples, more than any other state in the nation.

Immigration is very complicated, and I am not willing to swim in the pool alone, so I contacted Bryan K. Randolph, an attorney practicing in Maryland and the Washington, D.C., area who is preparing to face an influx of cases of binational same-sex couples seeking recognition of their relationships for the purpose of immigration. For the rest of this blog post, Bryan and I will do our best to break down the immigration issue.

Bryan explained the impact of the new ruling as follows:

On June 26, 2013, the Supreme Court handed down its landmark ruling in United States v. Windsor, which declared the Defense of Marriage Act, or DOMA, unconstitutional. The case itself was about whether a woman who was legally married to another woman could be forced to pay an extremely high estate tax upon her wife's death as though they were just roommates or friends, and the court said that she could not. The ruling compels the United States government (though not the state governments) to treat all marriages equally, whether they were opposite- or same-sex marriages. But the big question on a lot of people's minds today is how that ruling will affect the immigration status of non-American citizens married to same-sex partners who are citizens. So let's talk this through.

When, for example, a woman who is a U.S. citizen marries a man who is not a U.S. citizen, the couple can then petition the government to grant the man status as a legal resident and eventually may grant him U.S. citizenship. This is by no means a simple process, but the groundwork is laid, and with some work and the help of a skilled attorney, it can be relatively painless. (OK, it still hurts, but it beats the heck out of removal proceedings.) Which state the woman was born in, which state she works or even lives in, is completely irrelevant. The federal government makes decisions about immigration, and once a person is recognized by the federal government as a permanent resident (i.e., green card holder) or citizen, the states must all do the same.

So what does this mean for the status of immigrants who wish to marry, or are already married to, American citizens of the same sex? Let's break it down. I'll pose a question and then share Bryan's response.

Can a U.S. citizen marry his or her same-sex partner and apply for naturalization proceedings (e.g., green card, etc.)?

Yes. Although the final details haven't shaken out yet, judges have already begun staying deportation orders in preparation for new rules. Same-sex couples can, as long as one spouse is a U.S. citizen, marry in a state that allows same-sex marriage and then petition for the naturalization of the non-citizen spouse.

Can I petition for naturalization of my same-sex partner if we don't live in a state that recognizes gay marriage?

Absolutely. This is no different from a straight couple from Alabama running off to Las Vegas to get married. Massachusetts may not have as many wedding chapels with Elvis impersonators, but the idea is the same. Once two people marry in a state that recognizes their marriage, the federal government will also recognize their marriage. For immigration purposes, it doesn't matter that your home state does not recognize same-sex marriages. Just like the straight couple who married in Vegas, you will be free to move anywhere within the U.S., and the federal government will recognize your marriage license. Unlike the straight couple, however, once you cross the state line from California into Arizona, the state will not recognize your marriage, but they must still recognize your immigration status. I'll explain further in the next question.

Is there any impact on our marriage based on the fact that we live in a state that doesn't recognize same-sex marriage?

Yes, but not for the purposes of immigration. The federal government will recognize your marriage, but for now the state may not. This means that while you will be able to apply for federal benefits such as immigration, tax benefits, and military spousal benefits, you may not be afforded state-offered benefits. While this area of law needs some time to shake out, this could mean that state tax forms will still treat you as two single people, and state employment benefits for couples may not apply.

How will the naturalization process work?

This requires a longer explanation that should not be delved into here, but generally, the process will work the same as for any other married couple. There are meetings with USCIS staff, paperwork to fill out, and appearances to be made. The non-resident spouse will first be given the so-called "green card" (which is often, confusingly, not green), granting him or her certain rights within this country, including the right to remain for a period of time. Then, after another period of time and more paperwork, the spouse may apply to become a full citizen and enjoy every benefit of American citizenship.

What effect did the Proposition 8 decision at the Supreme Court have on same-sex spousal immigration?

The second case handed down on June 26 by the Supreme Court, Hollingsworth v. Perry, invalidated Proposition 8 in California and paved the way for California to begin granting same-sex marriages again. As far as immigration is concerned, this provides one more state where a U.S. citizen can marry his or her same-sex non-citizen spouse and then petition the federal government for citizenship for the non-citizen spouse. Beyond that, Hollingsworth has little effect on the status of immigrants or immigration.

Can we navigate this process without the help of an attorney?

Obviously I'm going to be a little biased on this point. What I will say is that the immigration system is complex and has a lot of pitfalls. Though the Windsor case has opened a lot of doors for LGBT immigrants, it is still the same immigration system, which denies green card and citizenship applications every day. It often requires a level of perfection and, in some cases, proper wording to help an application successfully make it to the finish line. With that in mind, and considering the high risk involved, hiring an attorney is a very good move.

Of everyone who reacted to the rulings on June 26, 2013, it's perhaps U.S. Rep. Susan Davis (D-Calif.) who said it best:

These rulings are an affirmation of marriage, love and commitment of two loving people for the good of society. It is also an affirmation of the spirit of equality that is laid out in our constitution.

Today the court moved us into the 21st Century where future generations can be proud of who they are.

Note: This blog post is not to be considered legal advice. I wish to express that if you are experiencing immigration issues or are under the threat of eminent deportation, you should seek qualified legal counsel at the earliest opportunity. Special thanks to Attorney Bryan K. Randolph.