This post is designed to shed light on recent judicial determinations that may ultimately have an effect upon Immigration rights for same sex bi-national couples.

The body of legal information that makes up United States Immigration jurisprudence is vast and complex. As American Immigration law is codified it can be exhausting for laypeople to sift through the myriad rules and regulations that relate to visa application adjudication and inadmissibility. One area in which US law is, at the time of this writing, quite clear is family based immigration. Pursuant to relevant sections of the so-called Defense of Marriage Act (DOMA) it is, at the time of this writing, not possible for the same sex fiance, spouse, or partner of a United States Citizen or Lawful Permanent Resident to obtain US Immigration benefits based solely upon a same sex relationship. This is true even where the marriage, or intended marriage, might be recognized or solemnized by a State in the USA.

Pursuant to the provisions of the Defense of Marriage Act (DOMA) the United States Federal government does not acknowledge LGBT marriages as a basis to petition for a marriage visa such as a CR-1 or IR-1 visa. Of further note, the Defense of Marriage Act (DOMA) precludes usage of a US fiance visa by LGBT partners wishing to solemnize a marriage in a US State which allows same sex marital or civil unions.

In recent months two major Court decisions have called the Defense of Marriage Act's Constitutionality into question. One recent case in California took up the issue of same sex marriage, but more in the context of State law. Meanwhile, a recently handed down decision by a Federal Court in Massachusetts might eventually lead to the repeal of the Defense of Marriage Act.

In the past several months and weeks some policy changes have accorded US LGBT couples with new rights and privileges; though, many of these benefits are only accorded to those in unique factual situations. For example, the State Department announced that same sex partners of American Diplomats, Consular Officers, and Foreign Service Officers may be accorded the same privileges as their different sex counterparts in the form of travel documents and living arrangements. That said, this policy could create the rather awkward situation in which the Officer adjudicating an applicant's visa petition, for the same sex partner of a US Citizen abroad, is required to reject the application even though substantially similar benefits are granted to the adjudicating officer's same-sex spouse or partner residing in the host country.

LGBT family immigration issues have yet to be fully delineated in the United States. Until they are, those interested in seeing Equal Immigration rights should keep abreast of immigration news and support those legislative initiatives such as the Uniting American Families Act (UAFA) which are designed to make the US Immigration process more equitable for LGBT couples.