An infrequently discussed topic in Immigration circles revolves around the legal discrimination’s and restrictions imposed upon Lesbian, Gay, Bisexual, and Transgender bi-national couples in the context of United States Immigration. This article is intended to briefly explore the issue of US visas for LGBT loved ones of American Citizens and Lawful Permanent Residents.
Traditional, or “different-sex,” couples may have difficulty obtaining American B2 tourist visas pursuant to the language of section 214(b) of the US Immigration and Nationality Act. This statute compels the Consular Officer adjudicating a visa application to assume that the applicant is intending to immigrate to the United States unless he or she can show evidence to overcome this assumption. The analysis used when examining a different-sex girlfriend or boyfriend of an American Citizen or Lawful Permanent Resident may not be utilized when examining a same sex partner of an American Citizen or Lawful Permanent Resident notwithstanding the provisions of section 214(b) since the Defense of Marriage Act (DOMA) virtually forces the United States Federal government and its personnel to not recognize same sex unions.
This legal ignorance of same sex relationships would mitigate in favor of a same sex couples applying for a US tourist visa as compared to a different-sex couple since the adjudicating officer can take notice of the fact that such a couple could not use a tourist visa as a circumvention to obtain an adjustment of status in the United States since the United States Citizenship and Immigration Service (USCIS) cannot grant adjustments of status to same sex couples notwithstanding a lawful marriage in a US State which recognizes such unions pursuant to the provisions of the Defense of Marriage Act.
Thus, tourist visa applications for same sex couples may have a comparative advantage over different-sex couple as a result of the fact that different sex couples may legally be married in all of the United States and territories and petition for Immigration benefits based upon that lawful relationship. In the case of US fiance visas the Immigration benefit may be granted based upon an intended union to be solemnized or legalized with 90 days of a foreign fiance’s admission to the United States of America.
Until the Defense of Marriage Act is either repealed by Congress, which could be possible in the event of Comprehensive Immigration Reform, or by the United States Courts, which might happen in one of two cases currently pending before US Appellate Courts, same sex couples could continue to maintain a relative advantage to their different sex counterparts in the American tourist visa application process.