Board of Immigration Appeals Signaling Change in Treatment of Immigrant Petitions for Same-Sex Spouses

In the last two months, the Board of Immigration Appeals (BIA) has reversed and remanded a number of USCIS Field Office denials of marriage-based visa petitions filed by same-sex couples. Prior to these reversals, it was USCIS policy to interpret the Defense of Marriage Act (DOMA), a federal law that does not recognize same-sex marriages for purposes of receiving federal benefits or entitlements, to determine that even a lawfully-performed marriage between two people of the same sex is invalid for immigration purposes.

In family-based immigration petitions (basically the I-130), the petitioner must provide evidence of a valid familial relationship, whether it is a parent petitioning for his/her child, or a husband or wife petitioning for his/her spouse. In the case of marriage, an even more searching inquiry is undertaken into whether the marriage was bona fide, or merely entered into for purposes of obtaining immigration status in the U.S. In the several states that do provide for gay marriage or civil unions, immigrant petitions based upon the marital relationship were rejected, despite that those marriages were lawfully performed.

However, its looks as though the BIA is beginning to give less credence to DOMA, requiring Field Office employees to find that the spousal relationship is valid if there are no reasons other than DOMA for finding otherwise. The only questions the BIA want the field offices to consider in determining whether the marriage is valid are as follows: 1. Whether the petitioner and beneficiary (intended immigrant) have a legally valid marriage under the laws of the state/province in which they claim the marriage was performed; and, 2. Whether, absent the requirements of section 3 of DOMA, the marriage of the petitioner and beneficiary would qualify the beneficiary to be considered a “spouse” under the Immigration and Nationality Act.

Additionally, it also seems as though the BIA is considering all same-sex marriages performed in any state/country in which such marriages are legal could be considered a valid marriage, as long as the marriage was valid in the locale in which it was performed. For example, one of the cases remanded to the USCIS field office by the BIA involved a United States Citizen who married his same-sex spouse in Toronto, Ontario (Canada), and petitioned for his partner’s family-based immigrant visa so that they can move back to New Jersey, where the couple also have a legally-recognized domestic partnership.

This year seems to be the year of change in immigration and immigration enforcement policies. If you are in a valid same-sex marriage and wish to petition for status on behalf of your spouse, talk to a qualified immigration attorney to discuss your options.