Same-sex Immigration Rule

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U.S. Citizenship and Immigration Services announced last week that it will allow people who were legally married to a same-sex person in another state to apply for a visa and a path to citizenship, even though Arizona does not allow same-sex marriage. Phoenix Immigration Attorney Regina Jefferies will talk about the new rule.

Richard Ruelas: U.S. Citizenship and Immigration Services announced last week it would allow people legally married to a same-sex person in another state to apply for a visa and a path to citizenship, even though Arizona does not allow same-sex marriage. Regina Jefferies is here to talk about the rule. Thanks for joining us this evening.

Regina Jefferies: Thanks for having me.

Richard Ruelas: They announced this Friday. Was it in response to a question? Was there someone pressing a case that asked the federal authorities to rule on this?

Regina Jefferies: What happened was in June the Supreme Court came out with the Windsor decision, which effectively struck down section 3 of the Defense of Marriage Act. They said the federal government cannot regulate marriage. As long as it's legal in that state, the federal government has to recognize it. And that decision flows down to every benefit under federal law, and immigration is one of those benefits. What happens, what happened was there were individuals who had been attempting to apply for benefits under the federal immigration law previously that had been denied, based on the fact that they were in a same-sex marriage, even though it was lawful in the state that allowed for it. As soon as the decision came out these cases came up, and the immigration service was putting out guidance so that the agency was aware and their offices were aware the agency would have to follow the Supreme Court's decision.

Richard Ruelas: Once gay marriage became legal in certain states, some couples were getting married with an immigrant spouse, then trying to apply for a visa. With the Defense of Marriage Act still in place, immigration authorities were saying no because it's not recognized federally. Now that that law is off the books, these people are trying again.

Regina Jefferies: That's correct, that's correct. In fact, some of the cases that had been denied under DOMA were actually being held by the immigration service, because some of them were only denied on the basis that DOMA was still on the books. As soon as DOMA was overturned they reopened them to re-adjudicate those cases because they can now approve them since DOMA is no longer on the books.

Richard Ruelas: So you mentioned some cases just being held back because of DOMA. That was the last step, the next thing is now they are just -- the spouse is allowed in? The spouse is given a visa and a path to citizenship?

Regina Jefferies: The way it would work, a really common scenario is someone is, say, attending ASU on a student visa, and they are from another country. They meet the love of their life in college, they are the same sex, they decide to get married in Iowa, which allows for same-sex marriage. Previously the U.S. citizen could not petition for that spouse to become a permanent resident. But now with the new Supreme Court decision, that U.S. citizen's spouse can now petition for the students to become a permanent resident to stay permanently in the U.S., There's an option if someone is outside of the U.S., if they are married in another country that allows for same-sex marriage like France or England now, a U.S. citizen could petition for that person to enter the U.S. as a permanent resident, as well. There are a number of immigration benefits now open to lawfully married same-sex couples that weren't allowed before.

Richard Ruelas: France, England and of course Iowa. Does Arizona have a lot of these couples? Do you know? Do you see it happening in Arizona?

Regina Jefferies: Oh, yes. I've worked with a number of couples since the date the decision was overturned. Many, many couples in Arizona are people married in other states. California allows for same-sex marriage, as well. There are many couples living in the state now filing for immigration benefits.

Richard Ruelas: It would stand to reason, given our proximity to the border there will be more immigrants, colleges, there's a lot here. When you mentioned the number of cases you've been handling personally, a dozen? 10? Couple of dozen?

Regina Jefferies: Already at least 10 or 12 and more every day. I think as people sort of learn about the benefits that are now available, they are realizing, oh, I can actually do this now. There's these are people who have been together for almost 20 years as partners. And then have been legally married and are just now able to position for a spouse to stay here.

Richard Ruelas: Is there anything the state can do that would put a damper on any of this?

Regina Jefferies: There's really not. The Supreme Court was pretty clear earlier this year that the state of Arizona really has nothing to do with federal immigration law. In this particular situation, the long-standing rule under federal immigration law is that a marriage is valid as long as it was valid in the state in which it was performed. You won't have couples getting married in Arizona because the Constitution prohibits same-sex marriage. But the State is unable to stop anyone who wants to legally marry in another state. To go across the border to Iowa, and bring the item back and have it validated by the federal government? The federal government is granting the benefit, they are adjudicating, the state really has no role in the process at all.

Richard Ruelas: Boy, that Supreme Court decision knocking down DOMA affected many small aspects that people probably didn't consider right away. I imagine for these couples they probably considered it as soon as the ruling came out.

Regina Jefferies: Yes.

Richard Ruelas: Appreciate you joining us, thank you so much.

Regina Jefferies: Thank you.

Regina Jefferies:Immigration Attorney, Phoenix;

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