Same- sex spouses now have equal rights (incl DV2013)

[SusieQQQ]

Sorry in case i missed it andif this has been posted before:

Important Notice – Same-sex spouses of U.S. citizens and Lawful Permanent Residents (LPRs), along with their minor children, are now eligible for the same immigration benefits as opposite-sex spouses. Consular officers at U.S. embassies and consulates will adjudicate their immigrant visa applications upon receipt of an approved I-130 or I-140 petition from USCIS. Diversity Visa applicants may include same-sex spouses in their initial entries or add spouses acquired after their initial registration. Those spouses who will follow-to-join DV 2013 applicants must make application on or before September 30, 2013. Spouses of DV 2014 applicants, even those not included in the initial entry, must apply before September 30, 2014. For further information, please see our FAQ’s.

 

[raevsky]

In fact, you must have a destination jurisdiction (state or territory) in the US that recognizes same sex marriages. You will have to prove that at the consulate.
In case of follow-to-join case the principal applicant must have resided in that type of jurisdiction in order the dependent spouse to get the visa. The dependent spouse will have to prove that at the consulate.
In all possible cases it is advisable to enter US through that type of jurisdiction only for initial entry. I am afraid a dependent spouse might be denied an initial entry if POE is in the jurisdiction that does not recognize same sex marriages.

 

[SusieQQQ]

In fact, you must have a destination jurisdiction (state or territory) in the US that recognizes same sex marriages. You will have to prove that at the consulate.
In case of follow-to-join case the principal applicant must have resided in that type of jurisdiction in order the dependent spouse to get the visa. The dependent spouse will have to prove that at the consulate.
In all possible cases it is advisable to enter US through that type of jurisdiction only for initial entry. I am afraid a dependent spouse might be denied an initial entry if POE is in the jurisdiction that does not recognize same sex marriages.

The above quote comes directly off the DoS website...are you saying they are wrong? In any case the immigrant visa will be issued already and in the person's passport - and once there is a valid visa it is not up to the person at the POE to decide if it should have been issued or not, only to process the person in accordance with their valid visa.

 

[raevsky]

The above quote comes directly off the DoS website...are you saying they are wrong? In any case the immigrant visa will be issued already and in the person's passport - and once there is a valid visa it is not up to the person at the POE to decide if it should have been issued or not, only to process the person in accordance with their valid visa.

You are right.

http://www.uscis.gov/portal/site/us...nnel=2543215c310af310VgnVCM100000082ca60aRCRD

Q3: My spouse and I were married in a U.S. state or a foreign country that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse? NEW
A3: Yes. As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage..

http://travel.state.gov/visa/frvi/frvi_6036.html

Q: Do we have to live or intend to live in a state in which same sex marriage is legal in order to qualify for an immigrant or nonimmigrant visa?

A: No. If your marriage is valid in the jurisdiction (U.S. state or foreign country) where it took place, it is valid for immigration purposes.

So, today that is allowed.

However, http://www.state.gov/documents/organization/86920.pdf contains a clause:

The underlying principle in determining the validity of the marriage is that the
law of the place of marriage celebration controls (except as noted in paragraph
d of this section). If the law is complied with and the marriage is recognized,
then the marriage is deemed to be valid for immigration purposes. Any prior
marriage, of either party, must be legally terminated.

This is what you quoted. Further

Marriages, considered to be void under State law as contrary to public policy,
such as polygamous or incestuous marriages, or which Federal law such as the
Defense of Marriage Act determines does not meet the Federal definition of a
marriage, cannot be recognized for immigration purposes even if the marriage
is legal in the place of marriage celebration

I am not sure how federal law treats child marriages. But the situation should be similar to same sex marriages.
If they are both banned by a state, like in Texas

http://blog.veritaslegalgroup.com/2011/12/11/voidable-marriages-in-texas-houston-divorce-lawyers/

In addition to the above, Texas does not recognize child-marriages under the age of 16, even with parental consent.

So, if the state treats same sex marriages as contrary to public policy, the marriage cannot be recognized for immigration purposes, if the intended destination is that state. I am not sure if Texas voids child marriages as contrary to public policy or just voids them on other reasons. If it is as contrary to public policy, the marriage is not recognized for immigration purposes, whatever the DOS website says by mistake.

State has jurisdiction to void same sex marriages as contrary to public policy. Even if none of the states does it today (what means they do it on other reasons; we know some states do it), they could do it tomorrow on that reason. In that case the visa that was already given, would be voided automatically.

So, until all states determine their points of view, just ignore those states in your immigration process. Do not to intend to live in those states, and have a proof where you intend to live. That proof might be needed at the consulate and at POE. Do not try to enter US through a state like that if you enter on an immigrant visa (when you enter US later, with GC, it does not matter).

 

[raevsky]

I specifically made this argument (place of celebration) bald so that you would be able to see that they refer to it explaining why same sex marriages are legal for immigration purposes - because place of celebration controls. However, there is an exception (public policy) to that rule. So, if same sex marriages contradict public policy of a state today or in the future, it is not recognized for immigration purposes

A similar thing would be requirements for K-1. Today you could get a K-1 only if you are legally able to marry in the state of destination. If you are 10 years old, not many states would allow you to marry and you cannot get a K-1 if you intend to marry in the state where it is not allowed. I think it is a similar limitation.

Again, I am not sure what would happen if a 10 year old spouse wants to get an immigrant visa. Further clarification is needed what is contrary to public policy. But the point is that public policy controls, not the place of celebration.

 

[raevsky]

And if the Supreme Court decision means the same sex marriages cannot be contrary to public policy (that is possible, but I am not sure about that), USCIS and DOS should refer to that argument in saying same sex marriages are legal for immigration purposes.
USCIS and DOS do not list that argument - their only argument is the place of celebration. And before the Supreme Court decision they were banned not because they were contrary to public policy, but by a separate clause of 9 FAM http://www.state.gov/documents/organization/86920.pdf

Section 3 of the Defense of Marriage Act (Public Law 104-199) states: “The
word ‘marriage’ means only a legal union between one man and one woman as
husband and wife, and the word ‘spouse’ refers only to a person of the opposite
sex who is a husband or a wife.”

So, that clause is not legal. But contrary to public policy argument is still an argument though. Nobody has mentioned since the court decision it is not an argument any more.

 

[TheRealCanadian]

State has jurisdiction to void same sex marriages as contrary to public policy. Even if none of the states does it today (what means they do it on other reasons; we know some states do it), they could do it tomorrow on that reason. In that case the visa that was already given, would be voided automatically.

States cannot violate the 14th Amendment on the grounds of "public policy".

 

[raevsky]

States cannot violate the 14th Amendment on the grounds of "public policy".

Doing what exactly on the grounds of "public policy" here violates 14th amendment here? Why do you think so?
Windsor v. United States decision was based on 5th amendment, not on 14th amendment. Do you mean 5th amendment?
Please clarify what exactly you mean and why.

 

[SusieQQQ]

It seems to me that USCIS/DoS are simply saying, to summarise (1) we accept same-sex marriages and (2) as long as you can produce a legal marriage certificate as proof you're good to go.

It doesn't matter to the immigrant what a particular state may or may not do from an immigration perspective, and in any case it seems logical that a same-sex couple would choose to live in a state that they're not discriminated against. So the rest above is a red herring, really.

I know of one person whose same-sex spouse got chosen for DV2014, I'm very happy for them that this has been passed.

 

[raevsky]

I disagree. I see not enough explanations, I see some contradictions in their policy. So I expect either more explanations or correction in the policy.
They need to clarify why priority of "as contrary to public policy" over "place of celebration" does not change the picture. Or they need to change the picture (say that jurisdiction of destination does matter or could matter in the future)

BTW, they had situations in the past where policies that were accepted too quickly, were reverted later (very soon afterwards; like DCF policy - several years ago it was cancelled, and in several months after that reverted back)

 

[raevsky]

I am looking at http://en.wikipedia.org/wiki/Public_policy_doctrine#Discussion about what could be meant by "public policy".

Definitely, polygamous marriages, incestuous marriages, as 9 FAM says.
According to this article, some other things too - child marriages (my guess was right), divorce, capacity.
They do not list same sex marriages though.

Maybe same sex marriages have never been a matter of public policy. In that case USCIS position make sense. But I am sure we shall hear more about attempts to reconsider same sex marriages as part of public policy.

 

[SusieQQQ]

I'm no US legal expert but a quick look makes it seem as if states can determine to some extent what their own public policy is. And of course as the world advances, what is against public policy - or not - changes over time. Just being gay used to be against public policy. It's interesting that CT approval of same sex marriages is based on the constitutional principle of equality. Given historical trends etc I'm more inclined to think the trend will be for more rather than fewer instances of same-sex marriage to be approved.

"On October 10, 2008, the Supreme Court of Connecticut, in Kerrigan v. Commissioner of Public Health, ruled that failing to give same-sex couples the full rights, responsibilities and name of marriage was against the equal protection clause of the state's constitution, and ordered same-sex marriage legalized." http://en.wikipedia.org/wiki/Same-sex_marriage_in_Connecticut

 

[raevsky]

But some states could declare it a matter of public policy. States like Texas are much farther in this process than democratic states like CT

 

[SusieQQQ]

But some states could declare it a matter of public policy. States like Texas are much farther in this process than democratic states like CT

Some states already declare it contrary to public policy, but public policy *of their state*. Like Alabama. Not exactly known for being at the cutting edge of civil liberties. Whatever...they'll be dragged into the 21st century eventually. The fact remains that USCIS policy is that if you can produce a legal marriage certificate it's good enough for them.

 

[raevsky]

http://blog.al.com/spotnews/2013/06/while_us_supreme_court_conside.html

Alabama would likely challenge any same-sex cases based on the full faith a credit clause of the U.S. Constitution, but the odds would be on the side of the couples, rather than the state, she says.
"I think Alabama would lose on that issue," she said. "Now, would it have smooth-sailing? It would depend on the judges on the courts that were hearing that issue."

Wait for lawsuits from the state of Alabama, when a married couple enters the US on an immigrant visa to live in Alabama.

 

[raevsky]

They already issued this - http://www.state.gov/documents/organization/212850.pdf but the text of the new regulations is not ready yet

 

[TheRealCanadian]

Doing what exactly on the grounds of "public policy" here violates 14th amendment here? Why do you think so? Windsor v. United States decision was based on 5th amendment, not on 14th amendment. Do you mean 5th amendment? Please clarify what exactly you mean and why.

My confusion - the 14th is the usual vehicle for these sorts of matters due to the equal protection clause. Either way, a state cannot override the Bill of Rights merely by saying it's a matter of public policy.

Same-sex marriage is for all intents and purposes nation-wide, all that's left is a few lawsuits to drag the states kicking and screaming. For immigration purposes it shouldn't matter where one is going to reside, only that the marriage is legitimate. After all, if I marry my first cousin and move to a state that doesn't permit such marriages, my marriage would remain valid. I expect the same will occur here.

 

[raevsky]

My confusion - the 14th is the usual vehicle for these sorts of matters due to the equal protection clause. Either way, a state cannot override the Bill of Rights merely by saying it's a matter of public policy.

Same-sex marriage is for all intents and purposes nation-wide, all that's left is a few lawsuits to drag the states kicking and screaming. For immigration purposes it shouldn't matter where one is going to reside, only that the marriage is legitimate. After all, if I marry my first cousin and move to a state that doesn't permit such marriages, my marriage would remain valid. I expect the same will occur here.

However, if you want to get a K-1, you have to prove you are legally free to marry in the state your fiancee/fiance lives, not in a third state.

 

[raevsky]

a state cannot override the Bill of Rights merely by saying it's a matter of public policy

Current edition of 9 FAM 40.1 referrs to State law as well, not only to Federal law. My understanding is that this statement will stay in 9 FAM, only Defense of Marriage Act will be excluded.

Marriages, considered to be void under State law as contrary to public policy...

So that means there was a common understanding that State law could form a public policy and that Bill of Rights is not violated by that. Also we know that Supreme Court left the rights of States to allow or disallow or even to recognize or not to recognize same sex marriages intact, so there is no contradiction of Bill of Rights with that right of States.

 

[SusieQQQ]

http://blog.al.com/spotnews/2013/06/while_us_supreme_court_conside.html



Wait for lawsuits from the state of Alabama, when a married couple enters the US on an immigrant visa to live in Alabama.

Who in their right mind would want to do that?!! Anyway it would be no different than a couple who got married in CT and moves there. AL law is clear, same-sex marriages are not recognized there, they don't care where the marriage happened, and any same-sex couple who move there, no matter where from, would presumably know that and have to accept that. No need for lawsuits from anyone....at least unless and until it becomes federal law and we have the gay rights version of the school desegregation ....