Frequently Asked Questions: Binational Same-Sex Couples

Please take note:  On June 26, 2013, the U.S. Supreme Court ruled the so-called Defense of Marriage Act (DOMA) unconstitutional.  For information about how this development may potentially affect you, click here.

The Department of Homeland Security (DHS) recently clarified that binational same-sex couples should be recognized for purposes of delaying or suspending removal and deportation proceedings. In this fact sheet, Lambda Legal provides answers to frequently asked questions from binational same-sex couples about this new immigration development. Please note that this document is not intended to provide legal advice or guidance regarding any specific situation.

1. What’s new for binational same-sex couples?

In reviewing deportation cases, immigration officials consider a variety of factors to determine whether removal should be delayed or suspended. One of these factors is: “the person’s ties and contributions to the community, including family relationships.”

On September 27, 2012, DHS clarified that the definition of the phrase “family relationships,” includes “long-term, same-sex partners.” This is an important clarification, because immigration officials across the country were not consistently respecting same-sex couples in removal proceedings.

2. How does this new immigration development affect binational same-sex couples?

If you are an undocumented person who has already been placed in removal or deportation proceedings, your relationship to a U.S. citizen of the same sex may, in some instances, help delay or suspend your deportation. If you are already in removal proceedings and you are in a binational same-sex relationship, you should consult with an immigration lawyer to better understand your options.

3. Will every binational same-sex couple benefit from this new immigration development?

No. As with every other factor that immigration officials take under consideration in removal proceedings, the “family relationships” factor is applied on an individual, case-by-case basis to determine whether prosecutorial discretion is appropriate. If prosecutorial discretion is exercised, the deportation may be delayed or suspended.

4. Do any factors that immigration officials take under consideration help HIV-affected binational same-sex couples?

Yes. Your health or your partner’s health—including HIV status—may be relevant for purposes of delaying or suspending removal proceedings, because the factors that immigration officials take under consideration include:

• whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative; and
• whether the person or the person’s spouse suffers from severe mental or physical illness.

5. What can I expect next?

DHS Secretary Janet Napolitano announced that she would direct U.S. Immigration and Customs Enforcement to issue written guidance to field offices codifying that LGBT family ties would be recognized as a positive factor for discretionary relief in immigration enforcement deportation cases.

6. With this new immigration announcement, can I get a green card or apply for residency if I marry my same-sex U.S. citizen partner?

No. It is important to know that you could be placing yourself at significant risk of deportation by applying for a green card or residency based on your marriage to a same-sex U.S. citizen partner. Undocumented persons who file an application for a green card or residency based on a marriage to a same-sex U.S. citizen run the risk of getting the application denied and being placed in removal proceedings. To avoid this risk, couples may want to wait, in hopes that the so-called Defense of Marriage Act (DOMA) is struck down by the U.S. Supreme Court r repealed, or until immigration officials take an official position about granting immigration protection and benefits to married same-sex couples before applying for a green card or residency.

7. If DHS is not providing immigration protection, should binational same-sex couples get married?

Whether to get married is an intensely personal decision that only you can make for yourself. If you marry your same-sex partner, you will not receive the same immigration-related protections and benefits as a different-sex married couple as long as DOMA is still in effect. binational same-sex couples should be prepared for and willing to take additional considerations into account before deciding to marry because, under DOMA, immigration officials will not provide a green card or residency to an immigrant who marries a same-sex U.S. citizen partner. Marriage to a same-sex partner has numerous potential risks and consequences for an immigrant who wants to remain in the United States.

8. If I am an undocumented person, would it be easier for immigration officials to locate me or detect my immigration status if I get married?

No. In most places, including New York, you do not have to be a U.S. citizen to get married, and you do not have to provide proof of immigration status to obtain a marriage license. This means that immigration officials will not be able to discover your immigration status through your marriage. However, if you submit an application for a green card or residency based on your marriage to your same-sex partner, immigration officials will discover your undocumented status and likely place you in removal proceedings if your application for a green card or residency is denied.

9. How does marriage affect my visa to visit, live, or work in the United States?

If you have a visa to visit, live or work in the United States, getting married may make it more difficult to obtain or extend some visas. If immigration officials discover that you have an interest or incentive to remain in the United States, because you are married to a U.S. citizen, this may be a basis for denying a visa application, extension, or renewal. If you have a visa to visit, live, or work in the United States, and are interested in marrying your same-sex partner, you should consult an immigration attorney before you take this step, and find out how marriage may affect your immigration status.

10. What other resources are available for me?

Lambda Legal’s Help Desk staff responds directly to members of our communities who are seeking legal information and assistance with discrimination related to sexual orientation, gender identity and expression, and HIV status.