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The Uniting American Families Act

By Ben Hart

Republish: EasyPublish™ Published: 23Jul2009 Word count: 539 Viewed: 395 time(s) Get Free Content For Your Site

The Uniting American Families Act is a bill that is currently pending approval by lawmakers in Washington D.C. This bill is controversial and important because it would change the United States Immigration and Nationality Act to allow "permanent partners" of American Citizens or Permanent Residents to obtain a visa in order to travel to the United States to take up residence.

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 act stated that marriage was only recognized federally as a union between a man and a woman. 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. From a practical standpoint, although Federal law would not recognize the bi-national same sex couple's marriage, it would accord the couple similar, if not identical, immigration benefits as a different sex married couple. As time goes on and more local jurisdictions begin recognizing same sex marriage, the Defense of Marriage Act will become somewhat innocuous and irrelevant because many of the several states will recognize the union and Federal benefits will be granted based upon the usage of different terminology to define the relationship.

An interesting aspect of the UAFA from the standpoint of a United States Immigration lawyer is the process of proving a "permanent partnership." I suspect that proving the bona fides of such a relationship will require more evidence due to heightened scrutiny on the part of USCIS adjudicators and consular officers at diplomatic posts around the world. 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.

Please be advised that this writing is intended to be used for educational purposes only and does not constitute legal advice. No attorney-client connection is formed between the author and any reader of this article.

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