The Defense Of Marriage Act And The Uniting American Families

The Defense Of Marriage Act And The Uniting American Families Act

The Uniting American Families Act (UAFA) is a bill presently making its way through the United States Congress. If passed, the legislation will likely have a major impact upon the way US Immigration benefits are administered to same-sex partners of American Citizens and Lawful Permanent Residents. Specifically, this bill would allow same-sex "permanent partners," to obtain a US immigrant visa.

After several jurisdictions in the United States began discussion regarding legalization of same sex marriage, Congress created and passed the Defense of Marriage Act (DOMA). The act maintains that marriage is defined as a union of matrimony between two people who are of the opposite sex. The effect of the Defense of Marriage Act upon United States Immigration law is important because before DOMA a legally executed marriage in the United States would be considered a marriage in the eyes of United States Immigration law and therefore could act as a basis for filing an I-130 petition for an Immigrant spouse visa. As a result of the Defense of Marriage Act, a couple of the same sex that has formalized a legal marriage (even in one of the 50 US states) is not eligible for Federal Immigration benefits since the marriage is not acknowledged as a marriage per the relevant provisions of DOMA.

The Uniting American Families Act would create a separate Immigration category under United States law that would allow "permanent partners," of United States citizens or lawful permanent residents to immigrate to the United States. The language of the proposed bill is clever because it invents the term "permanent partner," and thus circumvents the definition of marriage articulated in the Defense of Marriage Act. From a non-theoretical perspective, even though United States law would not acknowledge the domestic/foreign couple's marriage, it would grant the couple comparable, if not equal, rights as other couples vis-a-vis immigration benefits. As time goes on and more local jurisdictions begin recognizing same sex marriage, the Defense of Marriage Act will become somewhat innocuous and irrelevant because many of the several states will recognize the union and Federal benefits will be granted based upon the usage of different terminology to define the relationship.

An interesting aspect of the UAFA from the standpoint of a United States Immigration lawyer is the process of proving a "permanent partnership." I suspect that proving the bona fides of such a relationship will require more evidence due to heightened scrutiny on the part of USCIS adjudicators and consular officers at diplomatic posts around the world. In a way, the permanent partner visa will be somewhat akin to the K1 visa because the underlying relationship necessary to obtain a K1 is not a legal marriage, but instead a bona fide relationship in which both parties have the intent to marry upon the alien's entry into the United States. If "permanent partnership" becomes the legal requirement for certain immigration benefits, then the requirement of marital intent will probably be rendered immaterial because of the continued legality of DOMA. Thus the applicants for a visa based upon "permanent partnership," will be left in a position where they only need to prove that they have an actual ongoing relationship.

Please be advised that this writing is intended to be used for educational purposes only and does not constitute legal advice. There is not an lawyer-client association created between any reader and the writer of this piece.

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