Will an International Same-Sex Marriage Be Recognized in the US?
Answered by Lavi Soloway, a founding member and former national coordinator of the Lesbian and Gay Immigration Rights Task Force. Aug. 8, 2003
Q: Dear Lavi.
If a binational lesbian or gay couple weds in Ontario and comes back to the United States, would the foreign (non U.S. national) spouse be eligible for permanent residency? Also, if same-sex marriage is made legal in one of the pending suits in the United States, would permanent residency be available to the foreigner if the couple weds here?
Thank you.
Chris
A: Dear Chris,
Unfortunately, the answer to these questions is no. Through the Defense of Marriage Act (DOMA) which was passed in 1996, the United States created a federal definition of marriage as "a legal union between one man and one woman as husband and wife." It also defined a spouse as "a person of the opposite sex who is a husband or a wife" and declared that marriages that do not fit this description would be ineligible for any federal benefits, which includes immigration benefits. Thus, whether a same-sex couple marries in Canada, or perhaps in Massachusetts or New Jersey if those states ultimately recognize the right to marry, the Department of Homeland Security (formerly Immigration and Naturalization Service) will not recognize the marriage for immigration purposes.
It is also important to be aware that if the non-American spouse is in the United States on a non-immigrant visa, getting married or entering into a civil union with a United States citizen or legal permanent resident could jeopardize the non-immigrant visa. Anyone who is in the U.S. on a non-immigrant visa bears the burden of proving to the U.S. government that his or her intent is to be in the U.S. temporarily. So forming a permanent tie to an American could result in cancellation of the non-immigrant visa and to the denial of subsequent immigration applications.
Finally, if the unfairness of these laws makes you want to file a constitutional challenge against DOMA, please understand that it is extremely difficult to win this type of challenge in the area of immigration law.