Marriage Doesn’t Guarantee Citizenship
By TED HESSON
One of the common misconceptions about immigration law is that marrying a U.S. citizen means automatic citizenship. It doesn’t.
The immigration blog Feet in 2 Worlds tells the story of Griselda, an undocumented immigrant in Phoenix, Arizona, who married a U.S. citizen but found the path to citizenship too risky to undertake.
Her problem: To apply for a green card, she would need to return to her country of origin, Mexico. Since she entered the U.S. illegally, she would be barred from returning for 10 years. That bar can be lifted with something called a family unity waiver, but she would still have to return to Mexico as part of the process, and the wait can take years.
Rather than risk leaving the U.S., Griselda decided to stay undocumented.
An administrative change proposed by U.S. Citizenship and Immigration Services (USCIS) could make things easier for people in her situation. The proposed change would allow someone like Griselda to stay in the U.S. while applying for a family unity waiver, removing a significant obstacle to legalization.
USCIS proposed the policy nearly a year ago, and some expect an announcement soon. The agency declined to comment on the timetable.
Of course, the administrative change won’t help same-sex couples, at least not yet. The federal government doesn’t recognize gay or lesbian marriages because of the Defense of Marriage Act, which defines marriage as between a man and a woman.
That extends to the immigration system. You can be a legally married same-sex couple in New York (or any other state that recognizes marriage equality) but still not be allowed to sponsor your spouse in the way that a heterosexual person could.
In September, the Department of Homeland Security (DHS) formally acknowledged that immigration authorities should take LGBT family ties into account when making decisions related to deportations. But that doesn’t help same-sex binational couples when it comes to applying for green cards, according to Victoria Neilson, the legal director at Immigration Equality, an organization advocating for LGBT immigration rights.
“DHS has been very good with prosecutorial discretion in taking LGBT family ties into account and not physically removing lesbian and gay partners from the United States,” she said. “But they have not been as good on the front end of actually allowing Americans to sponsor their partner for lawful status here.”
Neilson says that her organization still welcomes the proposed change to family unity waivers. If the Supreme Court repeals DOMA or if an immigration reform bill passes that recognizes same-sex couples in 2013, the waiver will then be meaningful for some same-sex couples.