Victoria Neilson, legal director for the LBGT group Immigration Equality, was one of three panelists fielding questions submitted through social media sites. She was asked exactly how foreign domestic partnerships will be recognized under new State Department guidelines that require visa applications based on same-sex marriages to be treated the same way as those for heterosexual marriages.
“The advice that we have been giving to most couples is… if you’re in a civil union or civil partnership and you can get married, that your rights will be much more certain at that point and the processing of an application would be more straightforward," Neilson said.
“I understand there’s a legal argument to be made in favor of recognizing civil unions or civil partnerships,” Neilson added. “The safest answer is if you can marry without hurting rights that you need to protect, that’s the safer and faster route to go at this point.”
“This is kind of a thorny question,” noted panelist Don Heflin, director of the visa office at the State Department’s Bureau of Consular Affairs. “I expect it will take probably months to resolve exactly how civil unions are going to be viewed in terms of immigration law and other aspects of federal law.”
In addition to Heflin and Neilson, the hangout - moderated by Chris Johnson, a reporter for The Washington Blade, a “gay news source” - also featured panelist David Stewart, minister counselor for Consular Affairs at the U.S. Embassy in London.
At the U.S. Embassy in London earlier this month, Kerry announced that “as long as a marriage has been performed in a jurisdiction that recognizes it so that it is legal, then that marriage is valid under U.S. immigration laws, and every married couple will be treated exactly the same, and this is what we believe is appropriate.”
A self-described “U.S. citizen married to a non-citizen of the same sex who is undocumented and living in the U.S.” submitted a question on the possibility of adjusting the gay partner’s immigration status.
Neilson answered that legalization is indeed possible with “a couple of exceptions. If you entered legally with the visa and overstayed and you are married to a U.S. citizen, then the fact that you’re here unlawfully is forgiven and you can file that application from within the U.S.”
However, illegal immigrants who entered “without inspection, without getting a visa, and without seeing an officer at the border” would need to return to their country of origin in order to file for a visa, she said.
Currently, “full marriage equality” is offered in 13 states and the District of Columbia as well as 15 countries, including Argentina, Canada, Norway and Spain.
The Immigration Equality website offers the same advice Neilson did on marrying to “feel more secure that your relationship will be recognized for immigration purposes” and notes that generally, “marriage-based petitions are adjudicated quicker” than employment-based petitions.
The website’s “most common questions” section includes inquiries from individuals worried about their illegal immigrant partners re-entering the U.S., since “crossing the border has become more dangerous.”
Immigration Equality answers with a warning that “the U.S. government has hired more people to patrol the border and is using more sophisticated tools to locate border-crossers,” so the partner is “likely to be sentenced to federal prison.”
Advising against disclosing too much information while obtaining a tourist visa, Immigration Equality suggests that “the foreign national should not let the U.S. government know that he has a long-term relationship with an American citizen, as this could likely lead to the visa application being denied.”