Oliver-Zhang Law Broadens LGBT Immigration Outreach to Chinese Immigrant Communities Across the United States

Lighting the Way to Equality, Marriage Equality New York / 20091
By Julie Oliver-Zhang, Esq.

In many cultures, the topic of sexual orientation is still a taboo subject, even among close family and friends.  Most countries have not legalized same-sex marriage.  In Russia, for example, gays and lesbians still face extreme discrimination and persecution.  Just last May, Chinese government arrested LGBT activists who were handing out flyers during International Day Against Homophobia, Biphobia and Transphobia (IDAHO) in Guangzhou, China.

As a result, cultural barriers can make it difficult for ethnic and racial-minority LGBT community members to be informed about their rights to receive permanent residency status and other immigration benefits in the United States.  There are very few law firms or attorneys that are attuned to the special needs of the immigrant LGBT community.

Julie Oliver-Zhang, founding partner at Oliver-Zhang Law, especially understands the difficulties that gay and lesbian Chinese immigrants can face in achieving legal status in the US.  “As someone who immigrated to the United States at a young age, my family dealt with frequent difficulties with language barriers and inferior treatment from the most mundane customer service issues to not being able to get legal help,” says Oliver-Zhang. “My goal is to provide a safe space for LGBT Chinese immigrants and be a resource for those who want to stay in the US permanently.  How wonderful would it be to reunite families and loved ones?  We hope that LGBT couples around the world will be able to benefit from the new, equal immigration laws.”

Recently, Oliver-Zhang Law published an article in the Chinese World Journal, the largest Chinese language paper in the United States. The translation of the text of the article is below and can be found at http://tinyurl.com/nsalp4d

“On June 26, 2013, the United States Supreme Court in a 5 to 4 decision held Section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional.  Same-sex couples are now entitled to the same marital federal benefits as opposite-sex couples.   Thereafter, President Obama and Secretary of the Department of Homeland Security, Janet Napolitano, both welcomed the decision of the Court and promised that federal benefits for same-sex, legally married couples will be implemented swiftly, smoothly, and equally as opposite-sex spouses.   On January 10, 2014, Attorney General Eric Holder stated with regard to Utah’s same-sex marriage ban:  “Last June, the Supreme Court issued a landmark decision in United States v. Windsor, holding Americans in same-sex marriages are entitled to equal protection and equal treatment under the law.  This ruling marked a historic step towards equality for all American families.” 

Currently, same-sex marriage is legal in 16 states and the District of Columbia.  For those who have endured prevalent discriminatory laws in the LBGT community, this decision is not merely a progressive symbol of equality for gay rights, but it has for the first time, enabled same-sex couples to apply for immigration benefits. 

Until recently, obtaining immigration benefits, such as visas and green cards through same-sex marriage, was highly unlikely.  Most same-sex marriage immigration benefit applications were rejected.  The effect of the Windsor decision, however, was definitive.  Four days after the Supreme Court’s decision, gay couple Julian Marsh and Traian Povov received their notice for green card approval.  In another case, an American citizen applied for immediate family immigration for his spouse who was illegally present in the United States.  The immigration court initially began deportation proceedings against the foreign spouse, but the removal proceedings were terminated after the repeal of DOMA.

Attorney Julie Oliver-Zhang explains that gay, lesbian, bisexual, or transgender same-sex couples are eligible for immigration benefits even if they reside in a state that has not yet legalized same-sex marriage.  If one spouse is a green card holder or a U.S. citizen, then marriage in one of the 16 states or D.C. that has legalized gay marriage will meet the requirements for the application of immigration benefits.  Same-sex couples do not need to establish state residency, but merely get married in a legal gay marriage jurisdiction to be immediately eligible for green card or visa benefits for foreign spouses and their children.   Depending on the circumstances, even if the foreign same-sex partner has illegally entered or resided without documentation in America for a number of years, they may still qualify for a green card. 

Same-sex partners of U.S. citizens who are living abroad are eligible for fiancé or fiancée visas that will allow them to quickly travel to the United States and get married.   Once the foreign spouse obtains permanent residency and become American citizens, they can apply for immigration benefits for their immediate relatives, such as parents and siblings.   With the change in the new immigration laws, foreign LGBT partners can finally be reunited with their families. 

The new immigration rights is a positive step towards remedying a history of discrimination against same-sex couples, allowing those in the LGBT community to achieve the American dream through swift and effective immigration processing.”

If you have questions regarding same-sex green card or other immigration matters, please feel free to contact Oliver-Zhang Law for a free consultation at 202-643-1110, or [email protected].  We provide professional, caring counsel to the Chinese community.

同性婚姻伴侣快捷绿卡申请新思路

【纽约讯】2013年6月26日,美国最高法院以一票之差,判定美国联邦婚姻保护法违宪,因而合法婚姻的同性伴侣从此能享受到与异性伴侣相同的联邦福利。随后,美国总统欧巴马和国家安全部长Janet Napolitano都先后发表声明,欢迎美国最高法院的裁决,并承诺将确保合法同性婚姻能像传统异性婚姻一样迅速快捷地获得联邦福利及移民权益。 2014年1月10日, 美国司法部长Eric Holder 在关于美国犹他州同性婚姻的禁令公开宣布,「美国同性婚姻享有平等的保护,依法平等对待。这项历史性的裁决为所有美国家庭走向了平等的一步。」

到目前为止,同性婚姻在美国的16个州和哥伦比亚特区得以合法存在,对于长久饱受不公正待遇的同性朋友们来说,这一历史性的时刻不仅赋予了他们平等的权利,同时也为同性婚姻伴侣申请移民相关事务带来便利。

在此之前,通过同性结婚获取合法移民身份的希望十分渺茫,其中大部分的申请都遭到驳回。该判决效果显著,仅仅在联邦最高法院作出决定4天以后,已婚同性伴侣Julian Marsh和Traian Povov便收到了绿卡申请通过的通知。先前,一位美国公民为同性伴侣申请家庭移民遭拒,因而其外籍丈夫被列入递解程式。得知婚姻保护法违宪后,移民法官立即终止了相关法律诉讼。

詹久谊律师解释, 身处同性婚姻不合法州的同性伴侣也不用为如何注册结婚而担心。只要其中一方为绿卡持有者或美国公民,在同性婚姻合法的16个州或华府结婚,不用长久居住, 即符合移民法要求,并可为同性伴侣和孩子即刻申请绿卡移民。虽然同性伴侣也许数年非法居留在美国,根据情况, 他们也可能有资格获得绿卡。身处异国而分居的同性伴侣可靠未婚夫, 未婚妻申请签证来美结婚。外籍同性伴侣持有美国永久居留权后可为亲属, 像父母和兄弟姐妹,申请移民签证。今后, 外籍同性伴侣和配偶及亲属可在美国相聚团圆。同性婚姻伴侣移民平等的权利, 改善了长久歧视的遭遇,让许多同性伴侣亦可凭借高效快捷的新亲属移民,实现美国梦。

如果您有关于同性伴侣婚姻绿卡等相关移民事务,欢迎与​​詹久谊律师事务所联系, 免费咨询202-643-1110 或电子邮件[email protected] 我们的网站是www.oliverzhanglaw.com。我们为您提供细心专业的中文法律顾问服务。

Read more: 世界新聞網-北美華文新聞、華商資訊 – 同性婚姻伴侶快捷綠卡申請新思路

Texas Gay Marriage Ban Struck as Unconstitutional – Huge Step in Immigration Equality

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By Julie Oliver-Zhang, Esq.

February 26, 2014

“Equal treatment of all individuals under the law is not merely an aspiration, it is a constitutional mandate. Consequently, equal protection is at the heart of our legal system and is essential for the existence of a free society.”

Our LGBT clients often ask our attorneys if they can get married in their home states and then apply for immigration benefits, such as a green card or non-immigrant visas for their spouses.  Often, the answer to that question is “no”, because the majority of the states still have not legalized gay marriage.  We counsel them to get married in one of the 17 states and the District of Columbia that have recognized legal gay marriage and then file for legal immigration status for their spouses.  We also have to be careful of civil unions and domestic partnerships because they may not be legal marriages in the eyes of the USCIS.  This contrived work-around is not only an inconvenience, but a testament to the broad legal inconsistencies within the United States when it comes to the issue of gay marriage and immigration.  However, the prejudicial laws against gay, lesbian, bisexual, and transgender same-sex couples have been falling like dominoes in the series of lawsuits filed across America challenging these unjust same-sex marriage bans.  Since December of 2013, Federal Judges in Utah, Oklahoma, Virginia, and Texas have all invalidated the same-sex marriage bans in their states as unconstitutional.  As the momentum builds, these decisions are now all stayed and awaiting the decision of the Supreme Court.  After Windsor, the Supreme Court may be hard-pressed to hedge on a clear ruling on the existing same-sex marriage bans across the United States.

Texas Ban Revoked:  Tradition is no Excuse to Deprive Gays of Dignity in Marriage

On February 26, 2014, federal Judge Orlando L. Garcia held that “Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process.”  The gay couples involved in the case, De Leon, et al., v. Perry, et al., No. SA-13-CA-00982-OLG, were in loving, committed relationships for years.  Three of the plaintiffs served in the military, and one was an honorably retired Major.  The married lesbian couple, de Leon and Dimetman, had to undergo expensive legal proceedings in order to become parents.  Texas law considered the legal spousal status conferred to those gay marriages sanctioned in other states to be void.  Although de Leon was their child’s biological mother, Dimetman had to formally adopt the child in order to become a legal parent.

The Texas federal court recognized marriage as a fundamental right.  By denying LGBT couples the fundamental right to marry, Texas denied their relationship of the same status and dignity as those who are permitted to marry.  Gay and lesbian married couples have suffered real injuries, including “far-reaching legal and social consequences, along with the pain of humiliation, stigma, and emotional distress.”  The Court also defeated the argument of tradition, and explained that “tradition alone cannot justify the infringement on individual liberties.”  Same-sex married couples are entitled to the same legal, social, and financial benefits of marriage that opposite-sex couples enjoy.  The Court stated:  “Equal treatment of all individuals under the law is not merely an aspiration, it is a constitutional mandate. Consequently, equal protection is at the heart of our legal system and is essential for the existence of a free society.”

Setting a Trend of LGBT Equality in Immigration and Other Rights

     The Texas decision follows on the heels of Attorney General Eric Holder’s historical policy memorandum issued on February 10, 2014, ensuring that post-Windsor, federal benefits, including immigration benefits such as green card and non-immigrant visa benefits, are extended equally to all legally married same-sex couples.  All levels of the Department of Justice employees are instructed to the equal treatment of married gay, lesbian, bisexual, and transgender couples:  “The Department is committed to ensuring equal treatment regardless of sexual orientation, and to using every tool and legal authority available to combat discrimination and safeguard the rights of all Americans.”

This powerful, indubitable policy statement illustrates President Obama’s clear mandate on eliminating unconstitutional discrimination against same-sex couples.  In recent remarks, Attorney General Holder boldly counseled state attorney generals to actively refuse to challenge a federal court’s decision invalidating same-sex marriage bans if they believe the ban to be unconstitutional.

The latest Texas decision in one of the most conservative jurisdictions in America is a huge victory for the LGBT community.  It is perhaps imaginable that in the near future, lawyers will no longer have to advise gay and lesbian couples who require immigration benefits like green cards or cancellation of removal proceedings to marry in another state.

As always, if you are seeking assistance with gay immigration issues, please contact our LGBT attorneys at Oliver-Zhang Law for a free consultation.

Knocking Down the Barricades of Discrimination: Same-Sex Marriage Equality Upheld in Oklahoma

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June 15, 3014

By Julie Oliver-Zhang, Esq.

Victory was celebrated this Tuesday by gay rights supporters as Oklahoma joined one of two other federal courts, Utah and California, which have struck down a ban against same-sex marriage as unconstitutional.  In the decision, Judge Terence C. Kern of United States District Court for the Northern District of Oklahoma, using a rational basis review, held that:

“Part A intentionally discriminates against same-sex couples desiring an Oklahoma marriage license without a legally sufficient justification. First, Part A’s disparate impact upon same-sex couples desiring to marry is stark.  Its effect is to prevent every same-sex couple in Oklahoma from receiving a marriage license, and no other couple. This is not a case where the law has a small or incidental effect on the defined class; it is a total exclusion of only one group . . . .  moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.”

One of the two plaintiff lesbian couples, Susan Barton and Gay Phillips, own a company that provides vocational training to homeless teens.  Barton is an adjunct professor at Tulsa Community College and Phillips has a doctorate in sociology.  They have been in a committed, loving same-sex relationship for thirty years.  In order to legitimize their relationship, they had joined hands in matrimony three times.  The first was in a civil union in Vermont in 2001, then in Canada in 2005.  They again received a marriage license in California in 2008.  Like the Barton couple, many other same-sex couples have to marry outside of the state where they reside in order to qualify for federal benefits, such as the right to immigrate and receive green cards that was made available by Windsor in 2013.

On the heels of the Utah same-sex marriage freeze, Judge Kern had stayed his decision also pending appeal, although Attorney General Holder has affirmed in his recent video statement that all those LGBT couples who did manage to get married in Utah before the freeze are absolutely eligible for federal benefits.  This means that until the appeal is resolved, same-sex couples cannot legally get married and receive marriage licenses in Oklahoma.

Thus, the practical implication of the decision for gay, lesbian, bisexual and transgender couples who are in need of immediate immigration benefits is that they still must get married in another state or country that had legalized same-sex marriage.  USCIS has announced that it is the law of where the marriage was conducted, and not where the gay couple resides, that matters when it comes to the issuance of immigration benefits.  With foreign fiancée or spouses who have lived together and perhaps unlawfully present in the United States for decades because they are unable to receive legal status prior to Windsor, they can now contact an experienced LGBT immigration attorney to discuss their green card and inadmissibility waiver options.  Often, cases involving illegal aliens in same-sex marriages require professional assistance because the penalty can be deportation and permanent bar from re-entering the United States.

Yet, the tidal wave of equality for same-sex marriage is undeniable.  As Judge Kern eloquently concluded in his order:

“Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one. . . .  Equal protection is at the very heart of our legal system and central to our consent to be governed.”

BREAKING NEWS: Utah Same-Sex Marriages Recognized by USCIS for Immigration Benefits

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January 10, 2014

By Julie Oliver-Zhang, Esq.

Not so fast, Utah!  In response to Utah governor’s invalidation of over one thousand same-sex marriages earlier this week, Attorney General Holder published a video statement today that vindicated the federal rights of married same-sex couples in Utah.  He stated that:

“Last June, the Supreme Court issued a landmark decision in United States v. Windsor, holding Americans in same-sex marriages are entitled to equal protection and equal treatment under the law.  This ruling marked a historic step towards equality for all American families . . . .   I am confirming today, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages.  These families should not be asked to endure uncertainty regarding their status as the litigation unfolds . . .  In days ahead, we will continue to coordinate across the federal government to ensure the timely provision of every federal benefit to which Utah couples and couples throughout the country are entitled regardless if they are in same-sex or opposite sex marriages.”

In our last post that briefed the freezing of Utah same-sex marriages, we had discussed a potential solution for already married Utah same-sex couples to seek new marriage licenses in states that have legalized gay marriage.  This is no longer necessary.  Attorney General Holder’s new statement means that same-sex couples in Utah whom were married since last December will be eligible to submit their I-130 and other applications for spousal green card and other family immigration benefits to the USCIS.  However, other unwed same-sex couples with urgent immigration needs must now travel to a state or country that has legalized gay marriage in order to obtain new marriage licenses in order to apply for green cards or visas (with the exception of fiance visa, you can apply prior to marriage from anywhere in the U.S.).  Utah has for now halted further same-sex marriages.

Additionally, Attorney General Holder’s unequivocal tone and clear support affirming same-sex equal rights cannot be missed.  As a matter of policy, he is assuring the LGBT community and their families that their immigration and other federal benefits will be guarded and processed swiftly and smoothly.

You can contact our LGBT immigration attorneys to find out more about how the new changes in the law impact you and your family in terms of LGBT immigration to the United States.

Utah Gay Marriage Invalidation Will Not Stop Nationwide LGBT Marriage Immigration

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By Julie Oliver-Zhang, Esq.

January 9, 2014

“Same-sex couples with urgent need to legalize their immigration status already married in Utah can travel to states like California or New Mexico that have legalized same-sex marriage, get married again, and return home to Utah.  This way, the same-sex couple will have a valid marriage license with which to submit to the USCIS for green card processing . . .”

Utah has revoked over a thousand marriage licenses issued to same-sex couples on June 8, 2014.  Problem?  Same-sex couples have to have valid, legal marriages in order to qualify for immigration benefits.  This decision followed the U.S. Supreme Court order in the case of Herbert, Gov. of UT, et al. v. Kitchen, Derek, et al., No. 2:13-cv-217, that froze further same-sex marriages in Utah pending appeal in the Tenth Circuit.  The New York Times reports that Judge Robert J. Shelby of the United District Court for the District of Utah struck down Utah’s ban on same-sex marriage last December.  A torrent of same-sex marriages ensued in Utah in the last few weeks.   Pending the appeal and possible Supreme Court review, the original ban in Utah may yet be reinstated.  The invalidation of the same-sex marriages in Utah has profound impact for those hoping to qualify for needed immigration benefits.

Fear of Deportation Resumes in Utah for Undocumented LGBT Couples

According to the ACLU, Utah is among six other states that have passed laws first promulgated by Arizona that encourage racial profiling by requiring police officers to determine the immigration status of someone arrested or detained if there is “reasonable suspicion” they are illegal immigrants.

For the gay, lesbian, bisexual, and transgender community in Utah, there will be many who will face the resumed inability to get married and legalize their immigration status.  In a state that actively hunts down those who are undocumented and out-of-status, the denial of same-sex unions will again threaten those LGBT individuals who would normally be entitled to a green card through marriage.

Equal Immigration Rights Require Equal Marriage Rights

In June of 2013, the landmark Supreme Court case, United States v. Windsor, 570 U.S. ___ (2013) (Docket No. 12-307), held that limiting the U.S. federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions by Section 3 of the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment.  The Windsor decision allowed same-sex couples with legal marriages conducted in states or countries that sanctioned gay marriage to obtain the same federal benefits as opposite-sex couples, such as social security benefits, tax benefits, as well as family immigration benefits.

With the Utah government’s refusal to recognize same-sex marriages, LGBT couples will not be able to obtain the family immigration benefits conferred by Windsor until the Herbert appeal is resolved.

Practical Solutions to Remedy Illegal Immigration Status for LGBT Couples in Utah and Other Non-Gay-Marriage States

If you are gay, lesbian, bisexual or transgender and you wish to change your non-immigrant or illegal immigration status through marriage, the situation is not hopeless.  For Utah and other non-gay-marriage states, LGBT U.S. citizens and permanent residents with fianceés or spouses who are at risk of becoming out-of-status, who are currently unlawfully present, or who are interested in sponsoring their fiancée or fiancé from overseas can still qualify for federal immigration benefits.  Thankfully, USCIS has directed that “the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes.”  Thus, it is where you got married, and not where you reside that determines whether a same-sex marriage is valid.

Currently, all same-sex marriages in Utah are deemed invalid and without force.  This is likely to be the case for at least a year or more until the Herbert appeal is resolved.  This means that same-sex couples with urgent need to legalize their immigration status already married in Utah can travel to states like California or New Mexico that have legalized same-sex marriage, get married again, and return home to Utah.  This way, the same-sex couple will have a valid marriage license with which to submit to the USCIS for green card processing, even if they live in a state like Utah that is currently unfriendly to gay marriage.

Immigration law and LGBT rights are ever-changing and complex.  We provide free consultation with immigration attorneys familiar with LGBT issues at Oliver-Zhang Law to assist you with your questions and concerns.

Ms. Oliver-Zhang is the managing partner of Oliver-Zhang Law and a proud member of the National LGBT Bar Association.