According to a news program I just watched Quebec has made same sex marriage legal. My question is regarding general immigration law.
If a mixed sex couple (male/female) wishes to migrate to the US and become citizens must they re-marry legally once they become citizens for their pre-existing marriage to be legally recognized?
Can a US citizen marry outside the US under the laws of the nation where the actual marriage happens?
Is there a standing provision preventing gay Canadian couples from obtaining US citizenship? What about gay couples of mixed nationality (one Canuk and one American)?
Please refrain from the kind of moral speculation that will make this a GD posting. This is a deliberate legal question not open for debate as is applies to laws as they stand (perhaps some legal interpretation is in order, but unless you actually follow immigration law or work in the field leave it to the experts).
Many states have passed “defense of marriage” statutes (including, I am ashamed to say, California), which define marriage as being between a man and a woman; this was to avoid recognizing gay marriages registered in other states. I don’t know if any states have no such statute, and I don’t know what the federal law is.
I suspect that recognizing Canadian marriages is a matter of federal law; if left to the states, I’m pretty sure the statutes will hold up, but IANALY, and I can’t say for certain.
IANAL, but I work for an immigration law firm (as a paralegal).
Any marriage between a man and a woman (except polygamous ones, but that’s another ball of wax) which is legally valid where it was performed is legally valid in the U.S.
U.S. immigration law does not recognize gay marriages, no matter where they’re performed, for green card purposes. If a gay couple is coming temporarily to the U.S. (because, say, one party has a long-term work assignment here), consuls will generally grant a visitor visa to the other party, and will extend it in increments which would not normally be allowed for a visitor visa, i.e. visitors generally are granted a six-month stay, and in limited circumstances can extend it, usually only for an additional six months. The “second half” of a gay couple, however, will generally get six-month extensions for as long as the “first half’s” stay is valid. The same courtesy is granted to unmarried cohabiting straight couples.
However, there is no such thing as a marriage-based green card for gay couples, so if the “firirst half” gets permanent residency, the “second half” will have to qualify independently somehow if he/she wants to stay, by family relationship, employment sponsorship, or any other way people normally qualify for green cards.
To be fair, the same goes for straight couples, and my co-workers have had to have quite a number of chats with people who have been together for years and had kids together, but never gotten the piece of paper. U.S. immigration is definitely all about the piece of paper.
Comity agreements provide that a marriage in another country will be recognized in this country. Several states, however, have expressly provided that marriages between same sex partners is against public policy. Hence, even under the “full faith and credit” clause of the Constitution, they will not be recognized in those states, even if valid in another US state (such as Hawaii).
The relevant federal case is Adams v. Howerton 673 F.2d 1036 (1982), which held that although the validity of the marriage is determined by the law of the place where the marriage took place, the term “marriage” ordinarily refers to a relationship between a man and a woman. Later the Defense of Marriage Act (1996) confirmed this definition of “marriage.”
By the way, the U.K. recognizes same-sex relationships for immigration purposes where the partners have been living together for at least four years and intend to live together permanently.
Having read all of this I can say that as a matter of policy and human tolerance I am not proud to be an American and will not continue to look at my neighbor and think how superior he is to some Taliban goat humper. We may not be killing them, but denying the validity of their relationship, to me, is just as ignorantly savage.
FWIW, getting hitched in any of the Euro countries that have partnership laws will mean you are married only in that country. At present none of the relationships are recognised in other countries, not even other countries that have similar or identical partnership laws. This means basically that I could get hitched in Sweden, Denmark, Norway, the Netherlands, etc and not be a bigamist. If I hadn’t hitched up out of love I would probably have done this as a protest action… I still think it would be the coolest stunt ever to show how dopey the laws are.
Then divorce them all and live like a queen on 5 x alimony
I thought I’d address one misconception, which is that we have gay marriage in Canada. Not quite (unfortunately). The second-highest in Ontario court has ruled, as expected, that witholding legal marriage from gays and lesbians is unconstitutional, and the law must be rewritten within two years.
Our Prime Minister can now choose to appeal the ruling to the Supreme Court, thus stalling for years. Or he can choose to accept it, and change the law in the next two years. If he does not change it by the deadline, the court will rewrite the law.
But I don’t think there’s a lawyer left in Canada who believes that this law is constitutional. All PM Chrétien can do is stall.
What is being registered in Canada now are more domestic parterships. Until “gay marriage” comes in at the federal level, these relationships do not count for immigration to Canada, nor do they count for comity agreements with the US. Therefore, the Canadian-law side of the argument is null anyway, at least until the federal definition of marriage changes.
As for immigrating to Canada, there were changes only last month that put same-sex couples who had been “living together in a relationship” or “in a sexual relationship” for at least one year on the same footing as heterosexual couples and married couples for purposes of immigration.
Also, our most conservative priovince, Alberta, has just enacted an unconstitutional DOMA act of its own, and is considering using extreme measures – a controversial loophole in the constitution called the “notwithstanding” clause – to keep things that way.
Well, we DO have gay marriage in Quebec now. Well, it’s not called gay marriage, but when the program starts functioning, gay couples will be able to enter formally into civil unions the same as straight couples can get married. Both partners in a gay relationship can now adopt the same child.
Of course, you would have to actually be in Quebec in order to be able to get married here, so you’re back to your first problem.
Well that was my point. It’s not called “gay marriage,” but “civil union” or “domestic partnership.”
I used to think that the word “marriage” was just semantics, but doing research on this for a friend of mine who’s in a binational relationship, I found it’s more than that.
For purposes of immigration to Canada, and for the marriage to be legally recognized by other countries, it has to be “marriage.” Until then, legal partnerships are still a step short of full equality.
I used to be an immigration paralegal too. I had one client, in the States on an L1 (intracompany transfer) visa, who had been able to bring his common-law wife (or whatever the Swedish equivalent is) into the U.S. with no problem. When they decided to apply for permanent residency, though, we had to very strongly advise them to get legally married. He wasn’t too happy about it, as I recall, but as Eva says the chances of her getting a green card without that piece of paper were pretty sketchy.
While researching the changes to Canada’s immigration law, I discovered that a same-sex binational couple is now considered common law if they’ve been in a sexual relationship for a year.
I’m researching this subject for a close friend in Ontario whose boyfriend is American, and that boyfriend plans to immigrate to Canada, preferably as a spouse. I realize most people here are speaking from an American context, but what would an immigration official consider proof of a “sexual relationship?”
Its cool, in Sweden the whole “common-law-marriage” thing is extremely common, there is even a nice handy word for it, “Sambo” Means living together, but the legal definition is two people who live together in a “marriage-like” relationship. Then you have the word Särbo, which means sambos who don’t actually live together, but are otherwise “living together”.
The legality of same sex marriage in the United States is murky. California (where I live) provides domestic partnership registration which provides some of the legal advantages of marriage. Theoretically it’s available to any couple. In practice it’s used almost solely by gay people.
California’s defense of marriage law passed through the initiative process, which means the voters passed it directly without involving the legislature or the governor. In all probability it violates Article IV of the United States Constitution: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” This defense of marriage law has not been tested in the courts. This part of it certainly looks shaky.
Article IV applies to marriage laws. That’s why straight couples often go to Nevada to get married (where there is no waiting period) and lovestruck adolescents sometimes flee across state lines to wed in a jurisdiction that allows it at a younger age.
Now in the end this all depends on the courts. Right now American federal courts are very conservative, so don’t count on this working, but there could be a case for legal recognition of a mixed Canadian - US gay marriage performed in the United States. Remember that ol’ First Amendment? “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Some liberal religions in the United States perform gay weddings. I’ve never heard of a gay couple married in one of these weddings suing for legal recognition. Depending on whether the religious organization officially endorsed the practice and depending on whether the couple were active members, they might present a strong argument…
…if their love can survive ten years of legal limbo, public scrutiny, and probable death threats.
The proof required is the proof that a common law marriage was created, and this consists of two elements: (1) that the parties intended to be married; and (2) they hold themselves out to the public as married. Proof of a sexual relationship is not required, but, of course, in any marriage, if the relationship has not been consummated, it can be voided. It is really quite easy to prove the elements for a common law marriage: legal documents stating that the parties are married, such as insurance papers, deeds, etc. and statements from neighbors and friends that they always considered the parties to be married. Of course, the usual standard is that they always considered the parties to be husband and wife, but that won’t quite work in a same sex marriage.
That was exactly why the “sexual relationship” provision was written into Canada’s immigration policy, as far as I can figure – to address the fact that a gay couple is unlikely to be defined as “common law,” and that a binational couple will have a very hard time having property in common. There is also the provision that a gay couple who has lived together for a year is also considered common law, for the purposes of immigration – but it is very hard to be resident in another country for a year if you don’t have a legal reason to be there.
Right now, the couple in question visits one another on the weekends (they take turns going to each other’s countries), but they work and go to university in their own countries.
Unless the Canadian government surprises everyone by not challenging the marriage ruling, their only chance to be living together in a reasonable amount of time is that detail about a “sexual relationship” constituting a common-law marriage for purposes of Canadian immigration. Which is why I asked how you prove something like that to an immigration official.
Means living together, but the legal definition is two people who live together in a “marriage-like” relationship. Then you have the word Särbo, which means sambos who don’t actually live together, but are otherwise “living together”.