With a rapidly shifting landscape involving the Defense of Marriage Act and immigration law, we are getting more and more questions about marriage. While we used to almost always counsel against marriage, we have, since the February 23, 2011 announcement that DOJ will no longer defend DOMA, begun to change our general counsel.
Below we discuss the potential consequence of marriage on a non-citizen’s immigration status. General information, such as that provided below, does not constitute individual legal advice nor is it meant to take the place of individualized legal advice, however, we do hope to answer some of the questions we hear most often.
With the Recent Marriage Equality Wins on Ballot Initiatives and in the Courts, Why Is There not Full Immigration Equality Yet?
In many ways, the closer we are to full victory, the harder it is to wait. On November 6, 2012, for the first time we saw marriage equality initiatives win on the ballot in Maine, Maryland, and Washington state. And in May 2013, Rhode Island and Delaware also passed marriage equality legislation. This is all great news and shows that throughout the country, public opinion really has shifted towards equality.
However, immigration law is entirely federal, so until Congress acts to repeal the Defense of Marriage Act, or until the Supreme Court strikes it down as unconstitutional, the federal government will still not honor marriages of gay and lesbian people. On December 7, 2012 The U.S. Supreme Court agreed to review the case of Windsor v. United States in which the Second Circuit Court of Appeals ruled DOMA unconstitutional. This means that the case will be heard by the Supreme Court this spring and that we expect a final decision by the Court in June 2013. Meanwhile, we will continue to push for interim relief for LGBT immigrant families.
We Are a Binational Couple Who Wants to Get Married. What Factors Should We Consider in Deciding Whether to Marry?
Currently, New York, Massachusetts, Vermont, New Hampshire, Connecticut, Iowa Washington, Maryland, Maine, Rhode Island, Delaware and the District of Columbia provide full marriage equality for same sex couples. How marriage affects a noncitizen’s right to remain in the U.S. is a complicated question but the answer depends on several factors:
- The noncitizen spouse’s immigration status (if any);
- The noncitizen spouse’s plans to travel in and out of the U.S. ; and
- The noncitizen spouse’s need to obtain a visa and the type of visa the individual is applying for.
I’ve Heard That Some Visas Have “Immigrant Intent” Issues. Can You Explain What this Means?
Section 214(b) of the Immigration and Nationality Act (INA) creates a legal presumption that the foreign national is an “intending immigrant”, that is that she intends to remain in the U.S. permanently. This means that the foreign national subject to 214(b) essentially begins with a strike against her in her visa application process. Broadly speaking, there are two kinds of nonimmigrant visas: 1. Visas subject to a Section 214(b) requirement and 2. Visas not subject to a Section 214(b) requirement.
Okay, So How Does “Immigrant Intent”affect Whether or Not I Should Get Married?
To overcome the presumption of immigrant intent, a foreign national must show that he has such strong ties to his home country (such as family, a good job, real estate, school enrollment) that it is not likely he would want to remain in the U.S. beyond the period of time the U.S. gives him. The less economically developed the applicant’s country of origin, the more difficult it is to overcome immigrant intent.
Conversely, if Immigration believes that you have a strong incentive to remain in the U.S., because, for example, you are in a committed relationship with an American, this can also be grounds to deny a non-immigrant visa. So, getting married can make it more difficult to obtain or extend some non-immigrant visas.
How Do I Know Whether the Visa I’m Applying for Requires Me to Prove That I Don’t Have Immigrant Intent?
The following chart shows the most common visa statuses and explains the likely effect of a marriage to a U.S. citizen or legal permanent resident.
| Visa Status | Immigrant Intent or INA 214(b) Issues? | Could Marriage Affect the Noncitizen partner’s Ability to Enter the U.S. or obtain a visa at the consulate? |
| H-1b “specialty occupation” visa | No, visa holder is exempt from 214(b) requirement | Not likely. Unless, the noncitizen spouse loses their job and has to switch to a visa status with a 214(b) requirement to remain in the U.S. |
| L1A/L1B “intracompany” visa | No, visa holder is exempt from 214(b) requirement | Not likely. Unless, the noncitizen spouse loses their job and has to switch to a visa status with a 214(b) requirement to remain in the U.S. |
| O-1 “extraordinary ability” visa | No, visa holder is exempt from 214(b) requirement | Not likely. Unless, the noncitizen spouse loses their job and has to switch to a visa status with a 214(b) requirement to remain in the U.S. |
| O-2 “support personnel” for O-1 visa | Yes, visa holder is subject to 214(b) requirement and “must demonstrate that they have a residence abroad that they do not intend to abandon” | Yes, marriage to a U.S. citizen or U.S. legal permanent resident is evidence of intent to remain in the U.S. and if discovered by the relevant immigration authority, applicant for the visa could be denied at the consulate or holder of the visa could be denied entry to the U.S. and visa could be cancelled. |
| B1/B2 “visitor” visa | Yes, visa holder is subject to 214(b) requirement and “must demonstrate that they have a residence abroad that they do not intend to abandon” | Yes, marriage to a U.S. citizen or U.S. legal permanent resident is evidence of intent to remain in the U.S. and if discovered by the relevant immigration authority, applicant for the visa could be denied at the consulate or holder of the visa could be denied entry to the U.S. and visa will likely be cancelled. |
| F-1 “student” visa | Yes, visa holder is subject to 214(b) requirement and “must demonstrate that they have a residence abroad that they do not intend to abandon” | Yes, marriage to a U.S. citizen or U.S. legal permanent resident is evidence of intent to remain in the U.S. and if discovered by the relevant immigration authority, applicant for the visa could be denied at the consulate or holder of the visa could be denied entry to the U.S. and visa will likely be cancelled. |
| J-1 “exchange” visa | Yes, visa holder is subject to 214(b) requirement and “must demonstrate that they have a residence abroad that they do not intend to abandon” | Yes, marriage to a U.S. citizen or U.S. legal permanent resident is evidence of intent to remain in the U.S. and if discovered by the relevant immigration authority, applicant for the visa could be denied at the consulate or holder of the visa could be denied entry to the U.S. and visa will likely be cancelled. |
| TN “NAFTA” visa for Canadian and Mexican professionals | Yes, visa holder is subject to 214(b) requirement and “must demonstrate that they have a residence abroad that they do not intend to abandon” | Yes, marriage to a U.S. citizen or U.S. legal permanent resident is evidence of intent to remain in the U.S. and if discovered by the relevant immigration authority, applicant for the visa could be denied at the consulate or if applying for the visa at the border, could be denied at the border. |
| E1/E2 “investor or trader” treaty visa | Kind of. Visa applicant does not have to show that they have a foreign residence that they do not intend to abandon, but must convince the relevant immigration authority that they have the unequivocal intent to return when the E status ends | Yes, marriage to a U.S. citizen or U.S. legal permanent resident would be considered evidence contrary to the requirement that the visa applicant or visa holder demonstrate that they have the “unequivocal intent” to return to the home country and if the marriage is discovered by the relevant immigration authority, visa applicant could be denied at the consulate or visa holder could be denied entry at the border and the visa will likely be cancelled. |
| E3 “treaty” visa for Australian professionals | Kind of. Visa applicant does not have to show that they have a foreign residence that they do not intend to abandon, but must convince the relevant immigration authority that they have the unequivocal intent to return when the E status ends | Yes, marriage to a U.S. citizen or U.S. legal permanent resident would be considered evidence contrary to the requirement that the visa applicant or visa holder demonstrate that they have the “unequivocal intent” to return to the home country and if the marriage is discovered by the relevant immigration authority, visa applicant could be denied at the consulate or visa holder could be denied entry at the border and the visa will likely be cancelled. |
| Visa Waiver Program “VWP” Entrants | Yes, VWP entrants do not have to apply for a visa at the consulate to enter the U.S., but they are subject to a 214(b) requirement when they seek entry at the border and must demonstrate that they have a residence abroad that they do not intend to abandon | Yes, marriage to a U.S. citizen or U.S. legal permanent resident is evidence of intent to remain in the U.S. and if discovered by customs and border patrol (CBP), the individual could be denied entry to the U.S. and the privilege to travel to the U.S. on the VWP will likely be revoked. |
I Am Applying for (Or Traveling To) the U.S. on a Visa That Is Subject to INA Section 214(b). What Kinds of Evidence Do I Need to Present to the Relevant Immigration Official to Show I Do Not Have Immigrant Intent?
For practical purposes, all of the above visa categories that have an INA 214(b) requirement to demonstrate the individual has a “foreign residence that they do not intend to abandon” do not actually require evidence of an independent residence abroad. Instead, the test is an objective one, and the applicant for a visa or a visa holder seeking entry to the U.S., must satisfy the officer that they have strong ties to the home country, including family, employment, property and social/community ties. As we have always advised, evidence of a long-term, committed relationship or marriage to a U.S. citizen or legal permanent residence is considered evidence of immigrant intent.
If I Marry, and I Am Subject to the Immigrant Intent Rules, How Will Immigration Know That I’m Married? What if I Enter into a Domestic Partnership or Civil Union?
We have never heard from a couple who have told us that Immigration learned they were married through state or local marriage or partnership registries. To our knowledge, state and local governments do not share this information with Immigration.
The Department of State online Form DS-160 which is used for almost all non-immigrant visa applications has a “marital status” question with the following dropdown menu:
Marital Status
| Marital Status | Spanish (Mexico) |
| Married | Casado(a) |
| Common Law Marriage | Unión libre |
| Civil Union/Domestic Partnership | Unión civil/Vida conyugal |
| Single | Soltero(a) |
| Widowed | Viudo(a) |
| Divorced | Divorciado(a) |
| Legally Separated | Legalmente separado(a) de su cónyuge |
| Other | Otro |
We have never received definitive guidance from Immigration on whether lesbian and gay married couples should answer “single” or “married” given that the U.S. federal government continues to enforce the Defense of Marriage Act and define marriage as only between a man and a woman. Although we have asked USCIS for guidance on how lesbian and gay couples, in marriages that are not recognized by the U.S. federal government, should answer this question, USCIS has not provided an answer.
However, the fact that this question also asks for information about being in a “civil union/domestic partnership” which is also not a recognized marital status under federal law, it seems that the questions are directed at determining whether there is “immigrant intent.”
If you have entered into a marriage or civil union subsequent to filling out your immigration forms, you do not need to volunteer information to an immigration official which may hurt your application for a visa, but, you also should not answer a direct question untruthfully. If you reveal to an Immigration official that you are married or in a committed relationship with an American, this may be perceived as “immigrant intent.”
I Am Undocumented in the U.S., Is it Advisable for Me to Get Married?
If you are in undocumented status, marriage to a U.S. citizen is not likely to jeopardize your ability to remain in the U.S. and may, in certain cases, provide a defense to removal from the U.S. There have been some recent cases where Immigration Judges have exercised “prosecutorial discretion” and agreed to close deportation proceedings against gay and lesbian spouses of American citizens, if there is no criminal record. That does not mean actually granting lawful status, but, in a growing number of cases, being married to an American may help delay or prevent deportation. There have also been some cases where prosecutorial discretion has been granted to committed couples even if the couple is not legally married, so long as they can prove they are in a committed relationship.
If you are undocumented in the U.S. and are planning to travel across state lines to get married, please be aware that there are very real and serious risks involved in traveling on public transportation. Airports are full of Immigration and Customs Enforcement (ICE) agents. ICE agents also regularly board Amtrak trains and Greyhound buses demanding immigration papers from riders. ICE claims that it is “voluntary” to comply with these demands, but we have heard from numerous undocumented immigrants who have ended up in removal proceedings because of these encounters with ICE agents.
We have never heard of county clerks communicating with Immigration officials about who has married or what their immigration status is.
If My Partner and I Do Decide to Marry, What Are the Requirements to Do so in the Marriage Equality States?
The states that have marriage equality each have slightly different documentary requirements and rules. This chart is a good starting point (and is current as of June 2012) but before traveling to another state to marry you should call the county clerk and be sure nothing has change.
I Am Married. Can My Us Citizen or Legal Permanent Resident Spouse File a Green Card Petition for Me?
Unfortunately, the immigration agencies and the department of justice have stated that they will continue to enforce DOMA until there is a final judicial decision or until Congress changes the law. That means that, at least for now, if you file a marriage-based green card application, it will still be denied and if your foreign born partner is out of status he or she may be put into deportation proceedings.
