Love and marriage transcends borders all over the world. It is not unheard of for travelers to meet locals and fall in love and live happily ever after. In the United States, however, this happenstance does not have a happy ending for same-sex couples.
Federal law prohibits immigration authorities from treating same-sex couples the same as married heterosexual couples. See Immigration, marriage laws leave same-sex couples in limbo. Foreign same-sex spouses are viewed neither as married nor as a citizen. As a result, they cannot leave the country to visit family or friends for fear that they may not be allowed back into the United States and they may not be allowed to work either. While a U.S. citizen who marries a foreigner of the opposite sex can apply for a green card for the spouse to stay in the country and eventually become a citizen, a U.S. citizen who marries a same-sex foreigner cannot.
The Defense of Marriage Act (DOMA) does not allow same-sex couples to receive federal benefits available to opposite-sex couples no matter if they are married, in a civil union, or living in a state that recognizes same-sex marriage. Last summer, the Department of Homeland Security issued new deportation guidelines that prioritized cases involving immigrants with serious criminal records and seemingly granted extra discretion in cases involving binational same-sex couples. However, until Congress repeals DOMA or the courts strike it down, DHS will continue to enforce it.
Federal courts in Massachusetts and California have ruled DOMA unconstitutional and the Justice Department is no longer defending DOMA in federal court, however, the status of binational couples remains in the balance. The San Jose family law attorneys at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you are contemplating divorce or separation, contact the San Jose divorce lawyers at Lonich Patton Erlich Policastri. Our Certified Family Law Specialists* can provide you with an in-depth analysis of your issues. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization