When same-sex marriage became a reality in some countries, the state of Massachusetts, and for a short period of time in California, the big question for many was whether a U.S. citizen or legal permanent resident who married a person of the same sex would be deemed to be legally married in the United States for federal immigration law purposes.
The question arose as to whether a U.S. citizen or legal permanent resident would be able to marry in one of these jurisdictions and thereby petition the U.S. Citizenship and Immigration Services to have his or her spouse immigrate as an alien relative. The answer to this question at present is “no”.
If federal courts are given the opportunity to rule on a challenge to a denial of an I-130 petition submitted by a same-sex couple, they may do little more than cite the Defense of Marriage Act (DOMA). DOMA provides in part, that a marriage is defined as a union between a man and a woman for all federal law purposes. At present the U.S. government is under no legal obligation to give effect to a foreign marriage between persons of the same sex.
In addition to domestic legal obstacles precluding the approval of an I-130 petition based on same-sex marriage, there are practical factors why an I-130 petition should not be filed for same sex married couples. Such a filing could be found as fraudulent, essentially because, although the couple is in fact married, the petitioner and the beneficiary are not married under U.S. law. It is more probable however, that such a filing will be considered frivolous since it is not approvable, given that the marriage between two persons of the same sex does not create an immediate relative spousal relationship under current federal law.
The Uniting American Families Act (UAFA) is recently introduced legislation constituting the best hope for bi-national same-sex couples. The UAFA, re-introduced in February 2009 by Rep Jerrold Nadler (D-NY) and Sen. Patrick Leahy (D-VT) would add the words “or permanent partner” to existing immigration law wherever the word “spouse” appears. Consequently, the enactment of the UAFA is the best prospect for making family unification, a principal goal of our immigration laws, a reality for same-sex couples.