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!

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