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 Until recently, married same sex binational couples could not enjoy the same immigration benefits shared by their traditional counterparts due to the 1982 case Adams v. Howerton. Since the 2005 case Matter of Lovo, however, United States Immigration and Citizenship Services (USCIS) has recognized postoperative transsexual marriages.
Even couples who were married in and resided in states like Massachusetts or countries such as South Africa where same sex marriage is legal, USCIS summarily denied their petitions for Lawful Permanent Residency known as “The Green Card” citing section three of the Defense of Marriage Act (DOMA) which strictly defined marriage as between one man and one woman. As of February, 2011, however, the Obama administration will no longer defend DOMA because it violates the Equal Protection clause of the Fifth Amendment which provides that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws”.
Nevertheless, USCIS still resisted and, within days of the decision, issued guidance to its agents to hold off on adjudicating any same-sex partners’ immigration benefits while awaiting “final guidance relating to distinct legal issues involving DOMA.”
Though “final guidance” may still be months or years away, on March 30 USCIS announced its hold would be lifted and that the agency would finally begin to adjudicate I-130 petitions four same sex spouses of American citizens.
Such news is highly encouraging for gay binational couples. The implications of the unconstitutionality of DOMA and USCIS’s position are tremendous for legally married gay couples residing in states where gay marriage is recognized. The impact for couples who are legally married but who do not live in a state recognizing their nuptials still remains to be seen.
Until states’ legislation changes or until further, more specific guidance is issued, gay binational couples unwilling or unable to relocate find themselves living apart, with the alien spouse out of status or having to pursue an immigration benefit on their own.
Take American Cindy Elliott and South African Heather Grant, for example. The couple met online, began texting and Skyping then fell in love after finally meeting person following a grueling visitor visa application process.
“She had a limousine waiting. It was a spectacular welcome, special from the first moment, and from then onwards our love for one another grew with every minute we were together. Her family was awesome, welcoming, loving and accepting. I knew we were meant to be together, life partners,” said Heather.
The two got to know each other in person for a month but Heather could not continue to take time off. It was an expensive arrangement to impractical for a new romantic relationship to flourish.
“We were both extremely frustrated. All we knew was we were in love and that we wanted to spend the rest of our lives together. We were prepared to do anything,” exclaimed Heather.
Although gay marriage became legal in 2006 when South Africa’s Civil Union Bill was passed, the couple resides in Florida where gay marriage is not permitted and where other states’ or countries’ gay marriages are not recognized.
“We learned from this process that Heather and I, being a gay couple, had absolutely no rights under current immigration laws for her to come over as a family member,” noted Cindy.
“So even if we got married in South Africa,” Heather said, “we could not live in USA legally married. I would need to get a sponsor in order to get a working visa.”
Cindy explained the immigration process that came next. “It was a bit overwhelming as one of the options was to bring a substantial amount of money into the US marketplace. This was obviously not an option for us. We were told about the L visa [which would allow Heather to open] a satellite division of her current employer’s company. This would be a rather tedious application process in addition to needing approval from her boss abroad to move forward. Nonetheless it seemed our only option,” she said.
Heather and Cindy spent thousands of dollars opening RSVP Solutions & More, an event planning company in Florida’s capital. While the couple awaits more guidance from USCIS about their ability to petition for the Green Card through marriage, Heather’s L petition is currently being adjudicated by the USCIS Vermont Service Center located in a state where, ironically, gay marriage is legal.
Heather Grant has a background in event management and hospitality. She operates RSVP Solutions & More in Tallahassee. She can be reached at 850 545 0067 or via email at
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 Elizabeth Ricci is the managing partner of Rambana & Ricci, PLLC in Tallahassee where she concentrates on complex immigration matters such as same sex marriage based petitions, health and religious waivers and I-9 compliance, strategy and audit defense. She received her B.S. in International Business from Barry University and her J.D. from Nova Southeastern University where she argued on the First Amendment Moot Court team. Ms. Ricci is an E-Verify Enrolled Employer Agent with the Department of Homeland Security.
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