Articles Posted in Sexual Orientation (GLBT)

nextArrow.pngAfter the historic 2013 decision by the Supreme Court of the United States in US v. Windsor (570 US ___ ), many same-sex couples got married. This enabled a US citizen to petition successfully for a foreign spouse and for that spouse to get Legal Permanent Resident status, the so-called “green card.” Our offices in Hollywood, Pasadena, and Palm Springs has handled many, many of these cases, all successfully.

To ensure that green cards are not obtained through false marriages, the Immigration Marriage Fraud Act (IMFA) requires a couple to file Form I-751 Petition to Remove Condition on Residence if the couple was married for less than two years on the day the green card was granted.

green-card_frontonly-300x189.jpgIf you received your green card within the last two years based on marriage to a US citizen or green card holder, and if you wish check to see whether you are required to file the I-751, look at your green card. Under “Category,” if you see CR or CR-1 or CR-6 — if the two letters are CR, then you must file the I-751 before your green card expires. If you see CR-1 or CR-6 and your green card has already expired, seek legal assistance immediately.

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transgender.gif There has been a great deal of recent internet discussion about Bruce Jenner’s transition to a new identity as Caitlyn. I want to congratulate Caitlyn Jenner and address some questions about transgender people and immigration. There has been a small flood of calls today at both the Pasadena and Palm Springs offices of the immigration law offices of Fong & Aquino, in response to the Vanity Fair cover photo and article introducing Caitlyn.

In the bad old days, before Section 3 of the Defense of Marriage Act (DOMA) was struck down as unconstitutional by the Supreme Court of the United States in the 2013 landmark case of US v Windsor, same-sex marriages were not recognized under Federal law. If two men wanted to marry — even if their marriage could be legally performed in, say, Canada or Massachusetts — the US government refused to recognize that marriage, and no Federal benefits would attach to that relationship. This included a US citizen wanting to obtain legal resident status (the so-called “green card”) for a foreign spouse. A same-sex couple was not recognized, and no green card was possible.

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The tidal wave of the first same-sex marriage (SSM) cases has passed, and I’d like to share some very brief observations. Fong & Aquino, with offices Hollywood and Palm Springs, fielded over 150 inquiries about SSM and has undertaken representation for some 100 cases this year. Some things I’ve noticed:

* Officers are as interested in how the couple met in the case of same-sex couples, as they are for opposite-sex couples. They have even asked the name of the WEBSITE where some couples have met.

* Some officers are puzzled about why some family members might not know about the marriage.

* A significant age difference between the spouses remains a concern for some officers.

There have only been two instances of possible bias. In one case, the officer kept referring to one wife as “she” and the other wife as “husband.” We kept correcting the officer. His excuse was, “I’m sorry; this is new to us.” To be fair, he did not seem particularly hostile or homophobic, but the error was very irritating. And the case was approved on the spot.

The second case took place in Orange County, California. The officer said that for same-sex marriages, he was “concerned about a Chuck and Larry situation,” apparently referring to a 2007 Adam Sandler comedy in which two apparently straight men get married. The movie was full of stereotypes of gay men. I pointed out to the officer that his comment indicated he was assuming that the case was fraudulent. In the end, although additional documentation unrelated to the bona fides of the marriage was required, the case was approved with no fuss.

There are no broad, sweeping generalizations to be made at this point, Most of US Citizenship and Immigration Services here in California are to be commended for doing such a professional job to date.

If you have questions about a family petition or a spouse petition, feel free to contact the office. –jcf

Rainbow yes.pngOn Tuesday, 26 June 2013, the Supreme Court of the United States overturned the constitutionally discriminatory Defense of Marriage Act (DOMA). A US citizen or Legal Permanent Resident may now submit an immigration petition for a same-sex spouse.  This is historic news and a true change in the way immigration law will be applied to the community of immigrants. The telephone has not stopped ringing at either the Palm Springs office or the Los Angeles.

Even as we consider moving forward for the paperwork to unite our families, some things to keep in mind.

Among the key requirements is MARRIAGE. Civil unions, domestic partnerships, civil registrations, PACS, and other forms of “marriage lite” are NOT recognized. Only marriage: plain, old-fashioned, garden-variety marriage. The list of jurisdictions where same-sex marriages are currently permitted includes New York, Washington state, Massachusetts, and nine other jurisdictions plus the District of Columbia; and Argentina, France, Canada, South Afrika, and a significant number of other nations. A good list can be found here.

Here in California, Gov. Jerry Brown has ordered the state to begin issuing marriage licenses to same-sex couples as soon as the stay is lifted on the lower court order. This should happen within about 30 days.

For immigration purposes, the marriage must be legal where it was celebrated. As long it is as it is legal where it was performed, it can be used for legal permanent resident (“green card”) purposes. Processing time is currently about four to six months, from the time of the application until the interview in Los Angeles or Riverside California. For those interviewing outside the United States, at US embassies and consulates, the process will take approximately 8 months, start to finish.  Fiancé(e) cases are a bit more complex and will take an additional few weeks.

Not surprisingly, all of the other immigration law issues, such as criminal records, financial sponsorships, prior deportations, unlawful status, and so on, still apply to same-sex couples, so it would be wise to set up a time to chat as soon as possible with an experiences immigration attorney.

After 30 years of counseling and advising couples from the gay, lesbian, bisexual, and transgender communities, it is thrilling to be able to counsel our community through this momentous change and opportunity in the law.

This has been a long time coming. If you or anyone you know might benefit from the court ruling, please do not hesitate to contact the office. Meetings can be arranged at either the Los Angeles office or the office in Palm Springs.

Los Angeles Office:
6255 W Sunset Blvd, Ste 915
Los Angeles, CA 90028-7410

Palm Springs Office
777 E Tahquitz Canyon, Ste 328
Palm Springs, CA 92262

The contact phone is the same for both offices. Please feel free to give us a call (323.769.8187) to set up an appointment as soon as possible. Best and warmest regards!

Kiwi-300x300.jpgAs an immigrant advocate for gay and lesbian couples, I regularly receive calls at my Los Angeles and Palm Springs offices about whether same-sex marriage is available in x, y, or z country of the world. The legislature of New Zealand yesterday approved same-sex marriage. The measure must be given royal assent by the Queen’s representative, the Governor-General. This assent is typically automatic, a formality.

The number of countries which now or are on the verge of legalizing same-sex marriage is growing week by week. Pretty soon, it will cease to be news for me to post on this blog. However, please keep in mind that the United States’ Defense of Marriage Act (DOMA) STILL denies recognition of same-sex marriages for any US government benefits.

It is NOT YET the time to file a green card application (immigrant visa application) for your same-sex spouse.

If you have questions about US immigration and a nontraditional family or a same-sex couple, please do not hesitate to contact me. –jcf

dogs-hearing-by-Muffet.jpgYes, yes, yes. Some information about the proposed Comprehensive Immigration Reform was released today.

As an immigration lawyer with over 30 years of experience, my phones here in Los Angeles and in the Palm Springs office have been ringing off the hook. I already have over 100 emails from France and the UK. The message is always the same, “J Craig Fong, is there anything for me in the new immigration law?” Everyone wants to know the recently-released details for the proposed Comprehensive Immigration Reform (CIR). Enough! Assez! ¡Basta!

FIRST: I am studying and thinking about the proposal now.

SECOND: There are NOT many details in the limited release of information. It is more of a set of goals and principles.

THIRD: The actual legislative language is NOT yet available, so I can’t give you answers to specific issues.

FOURTH: I will send up a blog when I have a better idea of each set of provisions, but not right now, because I do not want to mislead anyone if I incorrectly analyse something which is so new and vague.

MOST IMPORTANT for you and for your friends: DO NOT RUSH OFF TO “REGISTER” WITH A NOTARIO!! Keep your money safe. At this time, there is NOTHING to register for. There is NO new program. There are NO immigration benefits available, because this is just a proposal. No one even knows whether this will pass through the Congress. Be patient. Let the details become clearer. Wait for President Obama to sign it into law. For now, just wait.

More later. –jcf

champagne-popping.gifI wrote a few weeks ago that the French National Assembly voted to approve same-sex marriage. Today, the French Senate passed a bill approving same-sex marriage, also. In the coming weeks, the two bills will undergo a “second reading” to reconcile minor differences in language. It is expected that the final bill will pass and same-sex marriage could be a reality throughout France by mid-Summer.

Yesterday, I noted that the Legislature of Uruguay also passed a same-sex marriage bill, and early in February, the United Kingdom was moving in the same direction.

In my work as an immigration lawyer and advocate on gay and lesbian issues, clients always ask me whether a legal marriage in, say, Canada or Netherlands would qualify a foreigner to apply for US Legal Permanent Residence through a petition by a US citizen spouse. At the present time, even with so many countries of the world recognizing and approving same-sex marriages, the United States still labors under the effects of §3 of the Defense of Marriage Act (DOMA) which prohibits the US from granting any benefits, including green cards, based on a same-sex marriage.

A few weeks ago, the Supreme Court of the United States (SCOTUS) heard arguments in a case that has the potential of invalidating §3 of DOMA. If this happens — and I am cautiously optimistic — then the US citizen in a legally-married same-sex couple would be eligible for apply for legal resident status for his/her spouse. The SCOTUS decision is expected by 30 June 2013.

If you have questions about non-traditional families, same-sex marriage, and immigration, please contact my office to set up a consultation. –jcf

uruguay-gay-flag-360x222.pngA large majority of the Uruguay Legislature today approved a bill legalizing same-sex marriage. The bill has the support of the country’s president, José Mujica, who has said that he will sign the bill in the next two weeks. Uruguay is the second country in Latin America (the other is Argentina) to legalize same-sex marriage, the third to do so in the Western Hemisphere (the other is Canada), and the twelfth nation to do so in the world. By some reports, marriages could begin as soon as July 2013.

Which brings us to the question: when will the USA take this step?

In our Federal system, states have determined individually the rules regarding the issuance of marriage licenses. Nine states, plus the District of Columbia, current permit same-sex marriage. The recently-argued case of Hollingsworth v. Perry places the question squarely before the Supreme Court of the United States (SCOTUS). However, it is not clear to me that SCOTUS will make a broad ruling legalizing same-sex marriage nationwide. It seems more likely that SCOTUS will simply take the view the each state is entitled to determine the issue for itself. In other words, SCOTUS will probably not announce a broad, universal right to same-sex marriage throughout the USA. They could, but I view the prospect as unllikely. Finally, SCOTUS could avoid the question entirely by saying that the Hollingsworth case should not have been brought to the Supreme Court in the first place. A decision is expected before 30 June 2013.

If you have question related to same-sex marriage and immigration, please feel free to contact my office for a consultation. –jcf

rainbow_flag.gifIn the past few days, my phones in both Los Angeles and Palm Springs have been ringing; everyone wants to know if it is now possible for gay or lesbian US Citizens to successfully petition a green card for their foreign spouses. As an advocate for nontraditional families for over 30 years, I am hopeful that the time is coming soon. BUT NOT YET.

The reason for the excitement is understandable. Recently, the French government has moved to legalize same-sex marriage very soon. Her Majesty’s government in the United Kingdom is likely to legalize very soon, also. Most important for us as Americans, comprehensive reform of the US immigration law may also have a provision that will allow recognition of same-sex couples for US immigration purposes. Right now, it is too early to know what Comprehensive Immigration Reform will look like.

There is NO PROCESS to get a green card for a same-sex married couple at this time. Applications will likely be held in abeyance; in the worst case, the foreigner may be thrown into deportation proceedings. In my view, it’s too risky right now, unless there are some exceptional circumstances.

Finally, and most unpredictably, the Supreme Court of the United States will be deciding the case of US v. Windsor which may also provide a mechanism for US citizens to petition their same-sex spouses. I’ll be writing more about the Supreme Court cases in another blog.

If you’d like to discuss an immigration matter for your family, please contact me. –jcf

Eiffel Rainbow.jpgClose on the heels of similar actions last week in the British Parliament, the French National Assembly yesterday approved a bill to legalize same-sex marriage throughout France. The initial vote was 329-229, in favor of legalization. The bill must still be approved by the French Senate, although most people believe that approval is likely in the Senate as well.

Because of my 30 years of advocacy here in Los Angeles and Palm Springs as an US immigration attorney on behalf of nontraditional families, I receive a lot of inquiries from gay and lesbian US citizens who wish to marry partners from the UK or France. These upcoming changes are good news for couples, but only to a point.

Gay and lesbian Americans who may wish to marry a French or UK citizen must remember that the Defense of Marriage Act (DOMA) is still the law in the USA. Even though French government may allow same-sex marriages sometime soon, the US does not currently provide any immigration benefits based on a same-sex marriage. We must wait to see whether any upcoming changes in US immigration law will provide benefits to same-sex couples.

If you or your partner or spouse would like to discuss immigration options, I look forward to talking with you. –jcf