PHOENIX — Gay Arizonans who legally wed to foreigners in other states will be able to use their status to gain a visa and a path to citizenship for their spouses living here even though Arizona won’t recognize their union.
U.S. Citizenship and Immigration Services said Friday it will determine someone’s marital status by the place they were wed, not where they are now living. That means the agency will consider the partner a spouse despite Arizona law.
The action appears to be the first crack in the 2008 voter-approved state constitutional amendment which spells out that marriage in Arizona is valid only between one man and one woman. That same amendment also was designed to ensure that Arizona does not have to recognize same-sex marriages performed elsewhere.
It follows the U.S. Supreme Court ruling earlier this year which overturned a key provision of the federal Defense of Marriage Act.
The justices said the federal government and all its agencies have to honor decisions by individual states to allow gays to wed. More to the point, it cannot deny benefits to gays who are legally married that it provides to other couples.
Nothing in the federal policy will force Arizona to consider these couples married. And that Supreme Court decision did not address another provision of DOMA which says Arizona and other states need not recognize gay nuptials performed elsewhere.
But it does mean that there will be gay couples in Arizona whose relationship is legally acknowledged by the federal government, even if Arizona will not.
The issue of marriage is significant because federal law gives U.S. citizens and permanent lawful residents the ability to sponsor a spouse for an immigrant visa.
“A lot of immigration law is based on benefits to family members,” said Shiu-Ming Cheer, an attorney with the National Immigration Law Center.
In its new guidelines for applicants, the agency said that it will now review such applications based on immigration law “and will not be automatically denied as a result of the same-sex nature of your marriage.”
Similarly, the agency said someone engaged to a foreign national of the same sex can also file paperwork.
Most significant for Arizona, the agency says that those living here who were legally wed elsewhere can apply for immigrant visas for the spouse.
“In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes,” the guidelines state.
The agency also said that it will reopen petitions that were denied prior to the Supreme Court decision because of the Defense of Marriage Act.
Cheer said the process can involve not only U.S. citizens who have married foreigners but also those who legally wed someone who already is in this country illegally.
More than the immigration status of spouses can be affected.
For example, the agency noted there are situations where someone is seeking admission to the United States under a program which requires that person to be a child, parent or sibling of a U.S. citizen or lawful permanent resident. The guidelines say that the marital status of the parent can affect whether the applicant qualifies.
“In these cases, same-sex marriages will be treated exactly the same as opposite-sex marriages,” the agency said.
The change can also shorten the time period for citizenship.
According to the agency, naturalization generally requires five years of residence in the United States following admission as a lawful permanent resident. But it also noted that federal law makes naturalization possible to someone who has been married to a U.S. citizen for three years.
Here, too, the agency said it will recognize same-sex unions.
Cheer said there are situations where legal recognition of a marriage can be used defensively.
“If somebody is not able to come to the U.S. because they have a criminal conviction, they can seek and receive a waiver based on hardship to their U.S.-citizen spouse,” she said. And now, with the new policy, that spouse can be someone of the same gender if the marriage was performed where recognized.
Similarly, someone who is facing deportation can also seek to have that delayed or rescinded, again based on the hardship to the spouse.