Prospects for bi-national same-sex couples in 2013

In my practice, I have a lot of gay clients.  I also deal with a lot of spousal petitions.  Today I want to discuss two developments, one potential and one definitely happening, that will affect US citizens and their same-sex spouses.

The first development will affect many undocumented individuals who are married to US citizens.  Currently, an individual who entered illegally and then married a US citizen cannot apply for a green card inside of the United States.  That person must leave the country and come back through the consulate.  However, upon leaving, the person will become subject to the "10-year bar."  He will have to stay out of the country for ten years before returning unless he can show that staying out of the country will cause extreme hardship to his American spouse.  If he can show extreme hardship, he will be granted a waiver.  This waiver can take many months to process.

Starting very soon (maybe in the next few days), the government will begin allowing these individuals to apply for the waiver inside the country.  If the waiver is granted, the individual will still need to travel to the consulate.  However, he will already have a waiver and will be out of the country for a much shorter time.

This is a great development and we're looking forward to helping our clients that have already put their names on our waiting list as well as the many that will come to us in the near future.

However, this benefit cannot help undocumented individuals who are marred to US citizen same-sex spouses.  This leads to the second development.  The U.S. Supreme Court has taken up the section of the Defense of Marriage Act (DOMA) that prohibits the federal government from recognizing same-sex marriages which are valid in the state where performed.  This includes immigration benefits, which are federal.

Should the Supreme Court decide that the federal government must recognize same-sex marriages that are valid in the state where performed in connection with federal benefits, same-sex couples will also be eligible to take advantage of the new waiver process.

We are hopeful that this should be the case.  It is unclear how helpful this change in the law will be to many Californians since same-sex marriage is currently not allowed.  However, the government may choose to recognize same-sex domestic partnerships for immigration benefits if DOMA is struck down.  Even better, the Supreme Court may uphold the lower courts and decide that Prop 8 is unconstitutional in some way which would allow many of our gay clients to get married in California.

As you can see, this coming year has the potential to be very good for bi-national same-sex couples!

How I analyze an undocumented person's immigration situation

For someone in the country without papers, there are only so many possibilities.  While I am always looking for ways to be creative and find new ways to help, in this post I will explain what types of things I look for in an initial consultation with an undocumented person.  Hopefully, I'll have new things to look for if we get some immigration reform this year but, as of right now, this is what I've got.

1. What country are you from?

In this question, I'm looking to see if the person might be from a place that has a special immigration benefit or is a common source of asylum-seekers.

2. When and how have you entered the U.S including all entries and exit dates and all times caught by immigration?

This question is very important to determine to identify a potential removal order or the permanent bar which can cut off some immigration options.

3. Have you had any contact with immigration?

This question helps to know if the person is in proceedings or has ever been in proceedings and might have a removal order.  Also, I check whether the person has ever filed any applications in the past or been on any applications.  I'm especially looking for those that have 245(i) eligibility (meaning the person can obtain a green card without leaving the country due to a past immigration petition).  I'm also looking for complications in the case because of past applications.

4. Have you ever been arrested?

Crimes can do a number on immigration options in some situations so I have to know everything.

5. List you spouse or partner and children.  Do your siblings or parents have legal status in the U.S.?

Here I'm looking for family immigration options such as immigration through marriage or a parent.  I also make sure the uncommon situation of deriving/acquiring citizenship from parents is not at issue.  I always want to know about the siblings and parents having status to clue me off on any potential benefits the person I'm speaking with might qualify for.  I will also inquire into the health of any US citizen or permanent resident children or spouses as there is a possible form of relief in Immigration Court for those with certain family members who have health problems.  

6. Next I probe for asylum which will be different for each person.  If I know a person is gay or transgender, I will go into the situation more.  If the person is indigenous Guatemalan, I'll ask him or her about the past.  I usually ask women about any problems with domestic violence.  At the least, I will usually ask if someone is afraid to go back to their country and look for reasons other than general violence.

7. How old were you when you entered the U.S.?

Here I'm checking for deferred action eligibility, the newest benefit available.

8. Have you ever been a victim of a crime?

Here I'm looking for a U-visa eligibility which can be given to people who are victims of certain crimes and help the police.  

While there may be some obscure situations not enumerated here, this is the general method for determining if anyone has possibilities, at least in my book.  Cross you fingers for more options in the future!