LGBT Immigrants Could Face Hard Road Applying for Marriage Visas

Immigration lawyers are gearing up to fight for their LGBT clients applying for marriage-based immigration visas. They say fears about being outed could stop some from applying.

By Seth Freed Wessler Sep 19, 2013

Amir Rasoulpour graduated a year ago from the City University of New York law school and didn’t know exactly what he’d do. He got a job for a short time at a small Queens immigration firm but wanted something different, more creative, so he started looking around for opportunities. In late June he found one. Shortly after the Supreme Court struck down the Defense of Marriage Act, which barred gay couples from the federal benefits attached to marriage, Secretary of Homeland Security Janet Napolitano made clear that her immigration agents would start accepting marriage-based visa applications from same-sex couples.

"Immigration visa petitions filed on behalf of a same-sex spouse [will be reviewed] in the same manner as those filed on behalf of an opposite-sex spouse," Napolitano announced.

When Rasoulpour’s heard this he had two thoughts. On the one hand he was thrilled. As an Iranian-American whose parents immigrated to the U.S., Rasoulpour knows firsthand that opening legal routes to immigrate will change lives for the better. But he also worried that Napolitano’s assertion that gay and straight couples will be treated exactly the same could end up backfiring for some couples.

"This is a class of individuals who have been discriminated against and so I believe that even with this change, it is important for there to be practitioners who focus on same-sex couples."

What Rasoulpour is worried about in particular are the parts of the marriage-based visa process that include investigation by federal immigration officers into the validity of a marriage. For straight couples able to live in the world with full public knowledge of their relationship, this is not a problem. But for LGBT couples who may not be out to their families, communities, neighbors or bosses, the prospect of a United States Citizenship and Immigration Services (USCIS) officer showing up at their apartment building or calling their mother to ask about the relationship poses a pretty serious risk.

"The immigration process is pretty invasive," Rasoulpour says. "People are on different levels of how out they are, and fears about being outed could stand in the way of applying."

That’s why Rasoulpour decided to launch a small law firm focused in large part on representing gay and lesbian bi-national couples. He’s just starting to get clients, but other, more seasoned lawyers who focus on marriage petitions or on the rights of gay and lesbian immigrants say Rasoulpour’s impulse is exactly the right one.

Courtney Morgan is a Los Angeles-based immigration attorney who handles many marriage petitions. She says she’s had a number of clients with exactly the worries that Rasoulpour is anticipating. One bi-national gay couple that Morgan represents became unsure if they could risk applying for a marriage-based petition out of fear they’d be outed.

"When I explained that if the immigration service does not believe that you have a legitimate marriage, it entails often that they show up at your house and talk to your neighbors or your family, they got scared," Morgan says, of the Filipino/Jamaican-American couple. "Their family had no idea that they were married or gay. And it would have caused irreparable harm socially and financially to be outed. They told me, ‘If that’s going to happen then we’re not going to do this.’ They’d risk deportation rather than being outed."

Morgan says that applicants who attempt to file a marriage petition without a lawyer may be at particular risk. Her clients often come to her after they’ve tried to file without legal help and tell her the questions they’ve been asked are overwhelmingly invasive. "I hear horror stories about the questions officers ask in interviews about marriage petitions," Morgan says. "They are often very personal questions. When an attorney is there, the officers tend to do that less often."

Like Rasoulpour, Morgan says she hopes immigration lawyers will help clients make clear to USCIS agents that they may not be out and would face serious repercussions if officers out them.  But she recognizes this could pose challenges.

"It could look pretty suspicious if a couple just tells someone from [USCIS] not to talk to their family about a marriage. It could look like fraud when it’s just fear." 

Victoria Neilson is the legal director Immigration Equality, the country’s leading LGBT immigrant rights advocacy group.  She says there’s a problem with pretending that the world is exactly the same for people in the LGBT community as it is for straight couples.

Opposite sex couples don’t need to worry about an employer finding out they’re gay, she tells me. But "same-sex couples might, so they won’t have filed for spousal healthcare benefits," which help prove a couple is married. "In some places," she adds, "there are no protections for gays and lesbians in things like housing discrimination so a landlord may not be a good person to verify a marriage."

All three attorneys say USCIS should implement guidelines to protect same-sex couples from these sorts of outcomes, but nothing has been released yet. "It’s a law now that same-sex couples will be treated like other couples," Rasoulpour says. "But at this point there’s no indication that there will be adjudicators trained to deal with post-DOMA petitions." 

Neilson says Immigration Equality has been in close communication with USCIS and with the State Department to encourage the drafting of these protections.

So far, the attorneys say they have not seen any same-sex marriage petitions denied or approved because of these sorts of barriers. But that could be because the only petitions yet to be approved, according to a Department of Homeland Security spokesperson, are those filed before DOMA was overturned and were then quickly processed after the decision.

The Department of Homeland Security did not respond in time for publication with answers to questions about the needs of same-sex marriage visa applicants.

Rasoulpour is watching to see what happens. "Lawyers’ jobs are to anticipate problems before they happen," he says. "In the best case scenario, a lot of these problems won’t happen." But, they could. And that’s why he’s started his firm. "It’s…important for attorneys to focus on this niche because it requires a certain sensitivity."