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.