Tag Archives: DOMA

An Easy I-130 Marriage Interview

Lindsay Schubiner and Prerna Lal

Lindsay Schubiner and Prerna Lal, at our official wedding ceremony in Washington D.C.

Today, I walked in and out of one of the easiest I-130 interviews at the United States Citizenship and Immigration Services (USCIS).

Heterosexual or not, standalone I-130 interviews are rare. They are typically given when the foreign national spouse is in removal proceedings or deported from the country. The purpose of the interview is to establish whether the petitioner and the beneficiary have a bonafide marriage. Usually, the interviewing officer is checking for marriage fraud. Because only an Immigration Judge (IJ) has jurisdiction over issuing a green card to someone in removal proceedings, the USCIS performs the first step to ensure that the relationship between the petitioner and beneficiary was not entered into to gain immigration benefits.

After the approval of the I-130, the applicant has two options if they want to proceed with getting a green card. First, an applicant can go back to court and file a motion for adjustment of status, and get a new hearing date from the IJ. Second, the applicant may file a motion to terminate proceedings and if granted, proceed with adjustment of status at the USCIS.

Several things played in our favor, especially as a same-sex couple. We had a symbolic, public wedding ceremony after Section 3 of the Defense of Marriage Act (DOMA) was overturned, which gained a lot of press attention. As we were walking out, the interviewing officer told us that it was not every day that she met couples who had newspaper articles written about them.

Second, I prepared the initial application, and made sure to augment the forms with enough bona-fide evidence of our marriage including our  joint leases, shared bank account statements, photos with narrative history, magazine and newspaper articles. It hit the right spot. Today, we augmented it with joint health, dental and life insurance information, voided check with our names, more shared bank account and credit card statements, and evidence of our shared gym membership. I had a photo album with recent photos and scrapbook, but there was no need for that.

Third, I requested ICE attorneys to use prosecutorial discretion in expediting our I-130 adjudication as set forth in an August 10, 2010 memo, Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions. Under normal wait times, an I-130 standalone application takes 11 months to process. To their credit, ICE attorneys on both sides of the country returned every phone call and email, and granted my request to expedite by changing the venue of removal proceedings, sending my A-files across the country, and setting us up with an interview within a month.

Here are some of the questions that the USCIS interviewer asked us today:

  • Biographical: Names, addresses, date of birth, place of birth and whether we had ever been married before;
  • How and where we met?
  • When did we start dating?
  • When did we first move in together?
  • Who proposed to whom?
  • Where did she propose?
  • Who came to the official wedding ceremony and how many people were there?

My partner, Lindsay and I, walked in at 8:03 am with a mutual lawyer friend, and we were done by 8:10 am. The interviewing officer said she would look everything over once more but anticipated approving the application.

Update: The I-130 was approved the same day.

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As icing on the cake, I just received my work permit renewal in the mail, valid until January 2015.

Judging by this red carpet treatment, one would think the U.S. immigration system has no flaws. Alas, my many years of experience as an undocumented immigrant and an immigrant rights advocate tells me otherwise.

(This post is a mere restatement of my experience and does not constitute legal advice and does not create a lawyer-client relationship. Please note results may, and very often, vary). 

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Married

Yesterday, we had a paparazzi wedding ceremony at the Lutheran Church of Reformation in Washington D.C.

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It was nonetheless, lovely to share our love with so many people, including all our badass friends from the National Immigrant Youth Alliance, and the same-sex binational couples from Immigration Equality who have so long been denied due process and equal protection under the law.

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Special thanks go to Emiliano Rojas, son of Claudio Rojas, who is the Cake Boss of the movement and stayed up all night making us a beautiful wedding cake with the help of Cristobal Lagunas-Alvarez, from DreamActivist Massachusetts. We are still eating through it, but you can have a photo.

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We’ll be getting legally married in a private ceremony in August.

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Thank you so much for making this day so wonderful and special.

Now Lindsay can work towards getting her Fijian citizenship.

Some media articles about the wedding are here:

P.S. Please email Lindsay Schubiner, lschubiner@gmail.com, for media quotes and comments as I’m busy studying for the bar exam.

P.P.S. Please send us all photos of the wedding ceremony!

Photo Credit: William Anderson, Benito Miller and Immigration Equality

 

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Post-DOMA – How Can LGBT Persons Benefit Under Current Immigration Laws?

With the Defense of Marriage Act dead, marriage equality provides more than 1,100 federal benefits previously unavailable to same-sex spouses.

I’m pretty sure that is an undercount given I can think of a hundred different immigration benefits alone. There are more than 24,000 American same-sex binational couples, but the immigration consequences of the Supreme Court’s decision to strike down DOMA goes beyond simply conferring green-cards to bi-national couples, and even affects step-children, adoption issues, derivative citizenship, and so on.

Some of the benefits that USCIS can promulgate immediately, without the need for new regulations or rule making, include:

  • Plain old adjustment of status to green card holder or consular processing and entering as lawful permanent resident;
  • Eligibility for provisional waivers for persons who entered without inspection;
  • Eligibility for I-601 hardship waivers for persons who were deported or left the country and triggered a 3/10 year bar;
  • In the special case of DACA beneficiaries who are queer, if they can obtain advance parole to travel under DACA, in theory, when they re-enter the U.S., they should be able to adjust their status through marriage to a U.S. citizen spouse (assuming no prior deportation);
  • Immigration benefits for step-children from a same-sex marriage;
  • Availability of waivers based on relationship to U.S. citizen spouse during removal defense including cancellation of removal, 212(h), and so on;
  • Relief under the Violence Against Women Act for battered spouses of U.S. citizens;
  • Derivative immigrant and non-immigrant visas, for legally-wed spouses including L-2; H-4, most E and EB categories and so on so that foreign-born and/or binational same-sex couples can actually live together in the U.S.;
  • Green card for persons who receiving withholding of removal, who now have U.S. citizen spouses.

That’s just a few examples. However, not everything is fine and dandy in the world, with DOMA gone.

Problems that remain

  • Enforcement – USCIS has not yet started issuing green cards for same-sex binational couples, or recognizing them as eligible for other benefits and waivers, but this is just a matter of time;
  • As immigration law recognizes a bona-fide marriage based on “place of marriage,” people who are too sick or poor to travel to one of the few states that provide for same-sex marriage lose out. A creative solution would perhaps be to figure out how video-conferencing technology can enable marriage of a couple stuck in an anti-marriage state or country;
  • Asylum seekers cannot get follow-to-join benefits for their partners left behind in countries with despicable LGBT human rights records. A creative solution for this may be enabling asylum seekers to gain humanitarian parole for a partner;
  • People detained in anti-marriage-equality states would also be left to fend for themselves. While this is true for even straight people, LGBT persons are more vulnerable in detention;
  • Bigoted consular processing officials who reveal the sexual orientation of an applicant to their relatives, putting their lives at jeopardy in their home countries;
  • Bigoted case officers in the U.S. – Now LGB couples can enjoy the misery that straight couples go through at marriage-based interviews;
  • Persons who have remained closeted, who come out and claim marriage benefits such as health insurance, may be subject to employment sanctions and workplace discrimination, which remains entirely legal;
  • For decades, LGBT persons have been evading border controls in creative ways. Those ways may come back to bite in some instances, especially where gay persons have committed marriage fraud by marrying straight persons for papers. There are, of course, several defenses, and one should seriously consider exploring all their options with an immigration lawyer experienced in litigation and removal defense. It is critical to note here that simply marrying to get papers is not fraud — fraud is triggered when papers are filed to get a particular immigration benefit.

I’m sure people have many questions and are seeking more practical knowledge for their individual cases. As such, I’d implore people to join Immigration Equality’s Legal Director Victoria Neilson, and Binational Couples Attorney, Tom Plummer, for a special, 90-minute conference call today at Noon ET. 

To join the call, dial
(800) 868-1837
(404) 920-6440 if you are outside the United States
and use access code 397548#

The IE legal team has posted answers to preliminary questions on their website. You can read those online here.

Please note: Nothing in this post denotes legal advice or is offered in substitution of advice from a lawyer. Success is not guaranteed and different people have different results. 

 

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Now Stealing American Spouses Too

429591_10150527346075095_625120094_9228496_1038846695_n-1As if stealing American jobs was not enough, illegal me was offered a full-time unpaid offer to marry my wonderful, beautiful, sweet U.S. citizen partner today.

This was inspired, in part, by the decision of the Supreme Court to extend my agony by granting certioari in the government’s almost-frivolous appeal in Mayorkas v. de Osorio but also the decision to strike down DOMA as unconstitutional. One way or another, the SCOTUS had to decide whether I get my green card through my mother or my spouse.

It was written. Since I am in California and she is in Washington D.C. right now, it came out of left field on Google Hangout. Then a missed call. I asked on Facebook whether someone would marry an undocuqueer, and she said “ME!” Several times, might I add.

Well, the status message doesn’t count as a offer, but an invitation to make offers. Excuse Contracts bar exam prep swimming in my head. I took a break from furious tweeting and saw her proposal on my iPad, via Talktone app! And I finally replied via GChat “Yes.” But wait, then she recanted. “Real proposals should be in person.” Too late, “I love you, and I already accepted.”

And then since it was on Facebook and Twitter, it must be true! Thanks, social media.

We told our parents. Our friends and family members are happier than us.

Now the trolls can say “they come here to steal our jobs and our wives….”

In all seriousness, marriage equality is the floor. I would ideally want to see the day that assimilating to the white, heterosexual paradigm is not the arbiter for rights and freedoms. I am very deeply, personally, anti-marriage as a way of granting people civil rights. We both are, which is why all of this is weird, and new territory. Ideally, we wouldn’t need to be married in order to live together and in order for me to adjust status to a green card holder.

Alas, we live in an imperfect world in imperfect times.

The Supreme Court decision to strike down Section 3 of DOMA as unconstitutional comes as a boon for so many same-sex bi-national couples similarly situated, who have been separated and borne the brunt of discriminatory immigration laws for far too long. Now, as soon as USCIS gives word and without needing any sort of regulations, any bona-fide marriage performed in a place that recognizes same-sex marriage should qualify a foreign-born spouse of a U.S. citizen for a green card. Undocumented persons who entered and stayed in the U.S. without inspection would still need hardship waivers to get a green card through marriage to a U.S. citizen. And tomorrow at the AILA Conference, I will corner USCIS Director, Alejandro Mayorkas, and extract a promise that he start stamping green cards for same-sex bi-national couples starting yesterday.

I love you Lindsay Schubiner. Of course, I’ll marry you whenever, wherever and however you want.

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Repealing DOMA Does Not Guarantee Same-Sex Couples Immigration Rights

There’s a lot I want to say about the white-washed Repeal the Defense of Marriage Act hearings in Capitol Hill right now, but I’d rather draw your attention to the fact that repealing DOMA  does not guarantee immigration benefits for same-sex bi-national couples. Attorney Jordanna Monston provides a small breakdown for us in this article.

This is not to say that we should not repeal DOMA. However, it does support my belief that we should have multiple strategies when advancing a rights-based agenda in our communities. When it comes to LGBTI immigration rights, we need to get rid of the one-year bar for asylum, eliminate “mandatory detention” of all immigrants,  pass the Uniting American Families Act, keep fighting to stop the deportation of same-sex bi-national couples. This list is not exhaustive.

Maybe there is a reason beyond oversight and racism for why queer people of color are not up on the Hill testifying to repeal DOMA today. Maybe it simply doesn’t affect our lives in the same way that it helps to bolster white privilege:

It is true that for some immigrants, marriage can be a path to obtaining legal status. However, not only is the process of gaining legal status through marriage contingent on the INS’s recognition of your marriage as one made in “good faith,” but this process also places a great deal of power over an immigrant in the hands of their citizen spouse. The requirement that immigrants prove to the INS that their marriages are legitimate and not just a means to legal status has meant that immigrants of color, who by virtue of the racist discourses surrounding immigration are more likely to be seen as “cheating the system,” often have a much harder time gaining legal status than white immigrants. In addition, many feminist activists within immigrant communities have drawn attention to the ways that an immigrant’s dependency on her citizen spouse for legal status in this country can produce or at least exacerbate exploitation and abuse within a relationship. As a result, in many cases, immigrant women are faced with the dilemma of having to choose between remaining in an abusive relationship or deportation. Given that domestic violence is not only a problem of the straight community, I think it is important that we take seriously the inequalities that gay marriage might produce in relationships between citizens and immigrants. It seems better to me to focus out political energies on fighting for broader changes in immigration policies that might enable immigrants in this country to live better lives regardless of their marital status.
– Priya Kandaswamy, from “Is Gay Marriage Racist? A Conversation With Marlon M. Bailey, Priya Kandaswamy, and Mattie Udora Richardson” in That’s Revolting: Resisting Queer Assimilation, 2004.

Another good read is “How Gays Stay White.”

Unlike Priya, I don’t think “gay marriage” is racist per se. I just think it helps to bolster white privilege and entrench existing problems of race, gender and class. I’m uncomfortable with the idea that people need to be in monogamous life-long relationships to have basic rights.

P.S. I don’t need apologetic white people lining up to tell me how repealing DOMA helps somewhat or how it opens doors. This isn’t your space. It is my space.

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What Should Same-Sex Bi-National Couples Do Since Obama Is No Longer Defending DOMA?

Rainbow American flag promoting equality for e...

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So the Obama Administration is not going to defend the constitutionality of Section 3 of DOMA in courts. That is the section which limits the definition of marriage as that between a man and a woman.

The lawyers and law students are rejoicing. They can see jobs for themselves less than a mile away with heightened scrutiny for LGBT individuals. Marriage equality advocates are celebrating Independence Day early and breaking out another bottle of human rights champagne. In a parallel universe, Arizona is now trying to ban even straight undocumented immigrants from getting married but more about that later.

Lets get to you. You are in a bi-national same-sex relationship. Your partner either has to travel back and forth to keep legal status in order to stay with you or your partner is undocumented (and hopefully unafraid) or your partner cannot enter the country and you’ve to travel to see her/him. What do you do?

Immigration Equality, an organization that advocates for the rights of LGBT immigrants, has forever opposed the idea of same-sex couples filing I-130 claims and adjudicating their cases in court. (Edit: But I hear that they may be reconsidering and changing their position on this in light of Obama’s decision). They have good reason to believe that federal judges will defer to DHS. For the most part, they are right since you are unlikely to win your claim and your partner may end up in removal proceedings.

But there is a better way to deal with this. Forget listening to advocacy organizations and lawyers. Stop sitting on your laurels. Ideally, I would like to see some 36,000 couples filing I-130 “Petition for Alien Relative” petitions with USCIS. Just imagine the mayhem that would cause. USCIS has to go through each claim. It will take them eons to reject them. You can file appeal upon appeal and backlog them further. You probably don’t even need to take to the streets or the courts.

Start talking to the media about how President Obama is keeping you apart from your partner, while he’s running a re-election campaign. Knock on the doors of your representatives and take them to task.  Under immense pressure, Congressional leaders will have to start holding hearings. Sooner or later, DOMA will be repealed in the courts or by Congress, not that it matters much. Even without that, DHS has to issue a directive or memo allowing your partner to live and work legally in the country (deferred action) and Congress has to take action and pass the Uniting American Families Act.

The system is denying you equal rights so screw with it. Give them hell. Shut them down. Go all out for reverse attrition through enforcement. It’s a whole lot more fun than sitting around doing nothing.

Anyway, that’s how you make change happen. They cannot deport us all. DREAM Act student leaders have known and exploited this for quite a while. It’s about time same-sex bi-national couples grow a pair and do the same.

P.S. I’m not your lawyer. You can’t sue me if things don’t go the way you want them to. This post, and nothing on this site, creates or implies an attorney-client relationship.

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Americans should learn from Icelanders

Here in California, amidst Arnold bucks and marriage equality lobby day, the4th district court of appeals ruled that a California Lutheran high school was free to expel students based on sexual orientation since it was not a ‘business’ and did not have to comply with anti-discrimination laws.
In ruling in favor of the school, the appeals court cited a 1998 California Supreme Court decision that said the Boy Scouts of America was a social organization, not a business establishment, and therefore did not have to comply with the Unruh Civil Rights Act. That case also involved a discrimination complaint based on sexual orientation.
Huh? Wait, discrimination based on sexual orientation is supposed to meet strict scrutiny standards much like discrimination based on race and sex. Is the Court saying that the private religious school is a social organization that can also expel ethnic minorities and women? This ruling gives private schools in California an open license to go on a 21st century witchhunt and expel students based on what social categories they fit in.
The other side of the Atlantic is a little more sane. Iceland’s longest-serving MP, Johanna Sigurdardottir, stands for the “little guy.”  She has devoted her life to public service, going from an air stewardess to a union official, which finally led her into politics. And she is widely expected to become Prime Minister of Iceland. And the icing on the top? Icelanders could not care less that she is gay.

In fact, Iceland approved same-sex marriage in 1996 — I was happily running around in 7th grade at the time. A year later, Fiji became the second country in the world to ban discrimination based on sexual orientation from the Constitution.

Congratulations Americans, you are about 12 years behind civilization.

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