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Home > Issues > Binational Couples > Same Sex Marriage
En Español
Can I marry my same sex partner in Massachusetts, Iowa, Connecticut or any other state that allows marriage- or register in New Jersey, Washington, or Vermont - and apply for legal permanent residence (a "green card")?
Unfortunately, neither a state-recognized same sex marriage nor a civil union in any state will provide immigration rights to same-sex couples in the short term. In the United States, immigration law is governed entirely by federal law, and in 1996 the federal government passed a law called the Defense of Marriage Act (DOMA) which defines marriage as only between a man and a woman. The U.S. Citizenship and Immigration Services have made it very clear that they will not recognize any same sex marriages. If you apply for a visa for your partner based on a same sex marriage, it will be denied. If your partner is not in lawful status, he could be placed in removal (deportation) proceedings.
Is the situation any better if I marry my same sex partner in another country, like Canada or Spain?
Unfortunately, no. As explained above, the U.S. federal government does not recognize any same sex marriage, whether it is recognized in a U.S. state or a foreign country because of the Defense of Marriage Act.
Is Immigration Equality planning to challenge this in Court?
We are very excited by equal marriage rights in Massachusetts, California, and Connecticut and advances in other states, and very hopeful that in the long run they will lead to DOMA being overturned. We do feel very strongly, however, that people should not try to challenge DOMA in the immigration context. The Supreme Court has held many, many times that Congress has the power to regulate immigration however it sees fit, and we believe that a challenge to DOMA in an immigration case would most likely be unsuccessful and could actually strengthen DOMA.
Okay, so I know I can't apply for a green card for my partner, if I don't file anything with Immigration, is there any other risk to my foreign partner if we decide to marry or register as partners?
It depends on your partner's immigration status. Very small factual differences can make very big differences in the outcome of immigration cases, so any non-citizen planning to marry should consult an immigration attorney before doing so. Many non-immigrant (temporary) visa statuses require the foreign national to prove to U.S. Immigration that the foreign national's intent is not to remain in the U.S. permanently. If your marriage becomes known to Immigration, this evidence of a reason to want to stay permanently in the U.S. could be a ground to deny your partner a visa in the future.
So these state-by-state advances aren't really such great news after all?
Equal marriage rights in three states and partnership recognition in others mark tremendous steps forward in the struggle for equal rights for LGBT individuals in the United States. Just a short time ago, it was still lawful to criminalize consensual acts of sex between people of the same sex in the U.S. Now, at least in Massachusetts, California, and Connecticut, same sex couples are having their relationships given the full recognition of marriage on the state level. This is a historic time the movement for LGBT rights.
Is there any reason to keep working for the passage of the Uniting American Families Act "UAFA" rather than just fighting for full marriage rights?
Absolutely. There is no need to choose between advocating for passage of the UAFA and advocating for marriage rights. At Immigration Equality, our goal is full equality under the immigration law for LGBT and HIV-positive individuals. This equality can be achieved either by the recognition of same sex marriages by the federal government or by the passage of the UAFA. There are currently 19 countries which recognize immigration rights for same sex partners, but only five countries which grant full marriage rights -- there is significant international precedent for immigration equality for gay and lesbian couples, even without marriage. UAFA may gain approval in the U.S. before full marriage rights do.
For more information on the UAFA click here.
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