Legal Articles

The Uniting American Families Act (UAFA) is a proposed statute that has yet to be passed by legislators in Washington D.C. This proposed legislation is currently in the news because it would amend current regulations to allow same-sex couples the right to Federal immigration benefits.

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). This legislation defined marriage as a domestic partnership between two people 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. Since the Defense of Marriage Act, a same sex couple that is legally married (even in a jurisdiction in the United States that recognizes same sex marriage, like Massachusetts) cannot obtain US Immigration benefits because the marriage is not recognized as such under 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 act itself is somewhat ingenious in that it creates a new category and therefore sidesteps a direct confrontation with the definition of marriage as stipulated in the Defense of Marriage Act. Even if US law did not acknowledge the multi-national couple’s relationship status, it would probably bestow substantially similar immigration rights as those accorded to married people of the opposite sex. With the passage of time, more state governments will probably pass laws legalizing same sex marriage. As a result, the Defense of Marriage Act will become an extraneous piece of legislation because the Federal government will have created alternative definitions to deal with alternative domestic relationships and it will be possible for same sex couples to obtain a lawful marriage in the USA.

An interesting aspect of the UAFA from the standpoint of a US Immigration lawyer is the process of proving a “permanent partnership.This author believes that, at least initially, there will be a great deal more scrutiny placed upon same sex visa applications because adjudicators may be worried about unscrupulous people using the new category as a means of fraudulently obtaining immigration benefits. 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. With permanent partnership, the marital intent requirement will most likely be rendered irrelevant by the continued existence of DOMA, so the applicants will likely be left with the obligation to simply prove the legitimacy of the ongoing relationship.

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FYI: This content is to be utilized for educational purposes only and is not to be considered as legal advice. A lawyer-client relationship is not to be implied to exist between the author and readers of this piece.