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.