In February 2011, Attorney General Eric Holder announced that the Obama Administration had determined that Section 3 of DOMA was unconstitutional and that the Department of Justice would no longer defend it in federal court challenges. However, the Department of Justice must still enforce DOMA pending a legislative repeal of the act or similar final judicial decision. Numerous and significant court cases are currently ongoing regarding this issue, while a number of legislative acts have also been introduced to the United States Congress. However, at the time of this article, DOMA remains controlling.
Based on DOMA, USCIS and DOS stand firm that any derivative visa, immigrant sponsorship, cancellation of removal, fiancé(e) visas, or waiver application dependent upon a spousal relationship, filed based on a same-sex-marriage or civil partnership, will be denied. Furthermore, USCIS and DOS will make an immediate decision on such matters, per standard processing times. USCIS and DOS will not honor requests that USCIS and DOS hold filed cases until the resolution of DOMA litigation.
A same-sex spouse must therefore seek alternative visa options to accompany a spouse holding a non-immigrant visa or to join his or her United States Citizen or Legal Permanent Resident spouse in the United States.
A subsection of the B-2 visitor visa provisions authorize DOS to issue special visitor visas to the same-sex spouse or partner of a foreign national that holds a long-term non-immigrant visa. This type of visitor visa contains a particular annotation that the holder is the same-sex spouse or partner to ease questioning and scrutiny by officers at the port of entry to the United States. However, like ordinary visitor visas, the same-sex spouse or partner will only be given authorized entry to the United States of up to six (6) months at a time. Stays for longer than six (6) months will need to be authorized by filing applications to extend status in the United States, with the associated fees. Furthermore, the same-sex spouse or partner is not authorized to work in the United States, whether or not the work is paid, and regardless of whether the work is for a United States company or foreign company. If the same-sex spouse or partner wishes to work in the United States, he or she will need to obtain an appropriate visa in his or her own right.
For same-sex spouses or partners of United States Citizens or Legal Permanent residents, this subsection of the visitor visa regulations only scalp massager benefits if the United States Citizen or Legal Permanent Resident normally lives overseas, but is traveling to the United States for a temporary period of time.
This visa subsection does not cover the same-sex spouse or partner of a United States Citizen or Legal Permanent Resident that normally resides in the United States. In adjudicating all visitor visa applications, DOS must determine that the applicant’s visit is temporary and that the applicant has significant ties to their home country. A marriage to a United States Citizen or Legal Permanent Resident residing in the United States, even when the marriage is not recognized by United States immigration laws, may result in the denial of a visitor visa application by DOS based on the presumption by DOS that the applicant will not return to their home country, but will rather remain in the United States with their spouse or partner.