Fighting DOMA and Preparing for the Post-DOMA Universe

The United States Supreme Court

The Supreme Court of the United States

In this post I would like to address a concern that has been the subject of some discussion lately: that some same-sex binational couples seeking immigration benefits may experience difficulties in the post-DOMA universe if they reside in states that do not recognize their marriages. I believe this concern is fundamentally misguided, as I explain in detail below.

Beginning in July 2010 our law firm, Masliah & Soloway, launched a pro bono campaign called The DOMA Project (www.domaproject.org) to directly address the impact of DOMA on married gay and lesbian binational couples and to pave the way for a smooth transition to a post-DOMA universe.  As part of this project, we have filed over 60 “green card” petitions for same-sex couples over the past 30 months.  Thus far, about half of these petitions have been adjudicated by the USCIS;  some received denial letters based solely on DOMA Section 3 (regardless of whether they were domiciled in non-recognition states) and the remaining cases are being held for further review, often pursuant to a request for abeyance.   The petitions that were denied were immediately appealed to the Board of Immigration Appeals (BIA).  Responding to these appeals, the BIA has not upheld a single denial by USCIS based on DOMA Section 3. In fact, of those appeals that have been decided by the BIA, ten so far, all have been remanded to USCIS with orders instructing USCIS to determine only (1) whether the marriages in question were legal under the laws of the states in which they were solemnized and (2) whether the couple met their burden of proof (evidence of cohabitation, commingled finances, a joint life together as spouses) of a bona fide marital relationship for the purpose of qualifying the beneficiary as a “spouse.”  In each remand, the BIA clearly ordered the USCIS to confirm the validity of the marriages under the state law where the couple was married (and not where they reside), and asks for a determination, based on the bona fides of the marital relationship, that the foreign spouse would be eligible for a green card “notwithstanding DOMA Section 3.”

In none of these cases did the BIA or the USCIS ever assert that lack of recognition of the marriage in the state of domicile would prevent approval, absent DOMA Section 3. Nor did the fact that the couple resided in a non-recognition state (as was true for many, if not most, of the cases) impede our ability to request “abeyance” on the final decision, i.e. our request that the case be put on hold until Section 3 of DOMA is resolved by the Supreme Court. In fact, there is no evidence from this body of cases (i.e. no arguments by USCIS in their briefing, no references to state “non-recognition” laws in USCIS “DOMA denial” letters, and no language in the BIA remands) that suggests that the BIA or the USCIS will treat married same-sex couples differently depending on state of residence in the post-DOMA universe.

Creating a favorable post-DOMA context that ensures swift approval of green card petitions filed by qualified same-sex couples has been a continuing objective of The DOMA Project. We have received no feedback from any executive branch agency or from the Obama administration that suggests that binational couples can expect to face future complications arising from their domicile in states that do not recognize their marriages.  However, while we remain vigilant in our advocacy for a smooth transition to a post-DOMA universe, it should be noted that the Immigration & Nationality Act looks to the law of the jurisdiction in which the marriage was entered into to determine whether the marriage is valid.  The BIA explicitly affirmed this general rule in the BIA ruling in the Lovo-Lara case (involving a marriage in which one party was transgender), stating that “[t]he issue of validity of a marriage under State law is generally governed by the law of the place of celebration of the marriage.”

Historically, there have been very rare circumstances in which consideration of the law of the state of domicile has been taken into account for immigration purposes (involving prohibited marriages that were found to violate state criminal statutes). We do not expect the federal government to withhold immigration benefits from some same-sex couples based on the law of their state of residence at the time they file a green card petition after DOMA Section 3 has been struck down by the Supreme Court.

Although I feel strongly that we should not be distracted by speculation about hypothetical scenarios, the clarification and information offered here will hopefully serve to empower more members of our community to join the fight against DOMA in the court of public opinion.  Make no mistake. We must stay engaged. We must challenge DOMA every day by our conduct and our belief that we are equal and that no law can ever make us unequal. We must hold accountable all government agencies that deny recognition of our marriages, deny our humanity and tear apart our families. We must hold accountable all government officials that continue to enforce a law against us that is unconstitutional and immoral. We must hold the President to his word, and insist that he take action to protect our families by putting our green card petitions on hold until the Supreme Court has ruled on DOMA.  We must tell our stories every day and continue to build a movement for equality.  We are getting closer to the finish line, but that does not mean we can wait for equality to come to us.

Contact us at [email protected] to find out how you can get involved.

Lavi S. Soloway, co-founder, The DOMA Project
Masliah & Soloway, PC

10 comments


  • Bradley S

    I keep seeing language (here and in articles from other sources) referring to the legality of marriages in the states in which they were performed. Is my assumption correct that this will also include marriages performed abroad in countries where same sex marriage is legal and the US Government would otherwise recognize the marriage of a man and a woman from the same jurisdiction? Thanks!

    February 8, 2013
    • The DOMA Project

      This post focuses on the question of whether marriages of same-sex couples will be valid for immigration purposes in a post-DOMA universe if they reside in states that do not recognize their marriages. For immigration purposes, a marriage is valid if legal in the jurisdiction in which is was solemnized, whether that jurisdiction is in the United States or a foreign country. If a marriage is legal in the country in which it was entered into it will be recognized for the purposes of U.S. immigration. Please direct specific questions to [email protected].

      February 9, 2013
  • Susan Libby

    I’m living in Peru with my partner. Should we come for a visit to the US and get married to prepare for post- DOMA?

    March 14, 2013
  • Christopher Price

    Thanks for all you do. And a special thanks for clarifying the issue around marriages in other countries. We were married in Buenos Aires, Argentina and now live in Peru because my husband has been unable to get a visa to the US. I hope once DOMA is struck down we can apply for a residence visa and he can finally meet my family…..

    March 31, 2013
    • Jason Tobias

      My Partner is Peruvian, we have been in a relationship for 8 years, but the Embassy in Lima denies him visa, we think becuse he told them he was going to stay with his boyfriend in USA the first time he went. He was just being honest but I believed it is why. We are hoping I can apply for a Fiancee Visa once DOMA is overturned.
      Good luck to you and your Husband. It is time we are all granted Equality.

      April 13, 2013
      • The DOMA Project

        It sounds like there may be a good question here for inclusion in an upcoming DOMA Project workshop… if so, we ask that any questions be sent to [email protected] so that we can incorporate them properly into our next workshop scheduled for April 28, 2013. We will answer them in a general sense to help as many people as possible, as we cannot direct our response to the specifics of one person’s case. But if you’d like to submit a question based on this situation or contact us about the fiance(e) visa option, please feel free to do so at the email above.

        Today’s workshop is now available at http://www.domaproject.org/2013/04/video-watch-our-workshop-green-card-basics-for-same-sex-couples-after-doma.html

        Thank you!

        April 15, 2013
  • beth

    All of the LAMBDA sites on immigration rights say my non-American partner and I should not get married before the SCOTUS decision. We currently live outside the US,and would like to move back to the US. She has a European passport that usually doesn’t need a visa to enter the US. Our assumption is that as soon as DOMA falls, we fly to Vermont and get legally married, and then file a request for a green card, coming back to our country as we wait. Our further assumption is that until the green card is either given or not, she will not be able to come and go to the US, as her pending request clearly shows intent to immigrate.
    We don’t know where to go with these questions, and greatly appreciate this site. Again, I’m going to assume (hope) that my question is relevant to a great many people, and could therefore be answered here..

    April 13, 2013
    • The DOMA Project

      In order to increase our efficiency, we ask that questions be sent to [email protected] so that we can incorporate them properly into our next workshop scheduled for April 28, 2013. You are quite right that there is conflicting guidance. Most of the guidance you refer to, if not all of it, has come ultimately from the founders of The DOMA Project (who were also the founders of Immigration Equality in 1993/4) and also began their LGBT immigration work at Lambda Legal Defense before that, despite the potentially confusing signals this information is sending, we are able to provide context and explanation if a question is submitted to Derek Tripp in advance of our next workshop on April 28, 2013. Thank you so much for raising this issue. It will likely prove valuable to a broad audience of binational couples and we hope to tackle it soon.

      Today’s workshop is now available at http://www.domaproject.org/2013/04/video-watch-our-workshop-green-card-basics-for-same-sex-couples-after-doma.html

      Thank you!

      April 15, 2013
  • I am excited to see Doma getting struck down in June of 2013 and hope to be able to file for a Fiance Visa in order to bring Ricardo from Venezuela back to Los Angeles to be with me!

    thank you.

    Howard Paul Shore

    April 14, 2013
  • Glen

    My partner and I currently reside in the US and my partner now has an expired status. Will that have any affect on our application for a green card?

    Also, I would like to know if there is any information on how long after the application is submitted before my partner and I will be able to travel out of the US and be allowed re-entry. I am a US citizen and am legal, my partner is currently not in a legal status and his visa expired several years ago. He did not leave the US at that time but decided to stay.

    Thank You

    April 14, 2013

Leave a comment


Name*

Email(will not be published)*

Website

Your comment*

Submit Comment

Comment moderation is enabled. Your comment may take some time to appear.

© The DOMA Project

Attorney advertising

This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.