Sydney Young

January 2
nd
, 2014
Ms. Curtin
G/T Intern/Mentor


Interview with Mr. Jon Greene on 11/20/13

SY: My first question is: In what ways has the removal of Section three on DOMA
(Defensive of Marriage Act) affected the number of LGBT Marriage-visa applicants

JG: So, in the case United States v. Windsor, decided by the Supreme Court in June of
2013, declared that the Defensive of Marriage Act was unconstitutional in terms of
section three which prohibits the federal government from refusing to recognize
same sex marriages that are valid in the jurisdiction in which they are created. So
prior to that the United States government refused to provide immigration visas and
non-immigrant visas based on marital relationships that are same sex in nature.
With the decision by the Supreme Court, the United States Government now
recognizes same sex marriage as valid if they are valid in the in the jurisdiction
which they are created, and has allowed for immigrant and non-immigrant visas to
be allowed based on those relationships

SY: What are the common personal roadblocks faced my LGBT marriage visa
applicants.

So what I mean by that is, what is it that is not in policy or regulation that stops
them, but personally, what kind of reservations do they have towards the marriage
visa applicant process?

JG: I would imagine that individuals that have been barred from obtaining benefits
under federal law for a very long time, that the sudden availability of such benefits
might be met with a little bit of caution. When a law is created by congress, its not
necessarily true that benefits are immediately available Usually regulations have to
be created by the executive branch departments to put the congressional law into
action. So when there is a change in law by the supreme court, thats great as a
matter of policy that things are now different, however when seeking benefits from
the executive branch of the federal government you have to have the executive
branch have regulations or policy guidance, sub regulations, in place to enable
people to take advantage of the change in law. Unless there are directions to the
executive branch on what they are supposed to do, then there are no benefits
immediately available. So it has taken some matter of weeks and months for benefits
to start becoming available to same sex couples. The day after the Windsor decision
came out, USCIS, began to adjudicate green cards based on same sex marriages, and
USCIS had been holding some of those cases that had been filed in anticipation of the
ruling and had not adjudicate those cases, but started to adjudicate those cases right
away. But there is a whole range of other things affected by this case followed by the
U.S. State Department, which did not have regulations in place or policy guidance.
The Department of Justice has a role to play in this and had a set of policy guidance.
The various parts of the Department of Homeland Security that deal with
immigration matters had been working at developing how to put the Windsor
decision into practical effect, so for people who are in same sex marriages or are
contemplating getting married to a same sex partner they have to look at the fact
that the federal government is not ready to simply change on a dime what the
policies and practices have been for decades and decades. So they have a right to
look at this in a cautionary fashion. The other part of that too is, its not just simply
having policies and procedures in place to start seeking benefits, its also having
some assurance that cases are going to be handled correctly and appropriately and
that the desired outcomes are going to be available. So you have to have some track
record with this and some people might say, were not going to be the first people to
test this out because if we get it wrong, weve got big problems and we want to let
other people try it out first and then well seek immigration benefits. Other people, I
know have entered the United States immediately and theyre trying to seek benefits
and the dont really know necessarily know what theyre doing and they could be
causing themselves bigger problems because they assume that they simply have to
get married and file for a green card and thats all they have to do. But there are
other issues that deal with admission and entry, proper representations and the
basis for which people enter the United States. These are all big questions that can
have a huge impact on the adjudication of cases. In addition to people who have
prior immigration system experience might have some problems in their
immigration history that are not simply cured by the fact that same sex marriage is
now available. So for example someone who was married to an opposite sex person
who then discovers that he or she is gay, now has a same sex marriage, might have
some addition effort convincing the Department of Homeland Security that there
was not fraud going on now or fraud going on back then, but the person had two
bona fide marriages just to people of different sexes.

SY: So what solutions do you foresee or think that could help ease these
reservations and kind of smooth over these roadblocks in the process.

JG: The first thing is that time is a big factor. As cases get adjudicated, people see
some confidence in the system working. That will encourage other people to take
advantage of the system. Not everybody is an adopter of change in policy and
procedure so those people who wanted to sit back and wait as months passed now
given this sort of first year of this implementation of the due law. I think you will see
more people coming forward to advantage of these benefits because they see the
system is working. They are reports available of success stories. Its going to take
longer to see if we have problem cases and how the difficult cases get resolved
because the government takes longer to adjudicate those cases and the cases will
end up getting appealed and wind up the appellate court so there might be few
years before we really get a handle on where the problem cases are. So, again, I
think time is the most important factor in this. Another aspect I think is people who
are applying for benefits and their attorneys and organizations that have an
interests in this issue, are following along with the Department of Homeland
Security, and the Department of State and other departments of the executive
branch, to see how things are being handled. And if problems arise, advocacy groups
have the ability to engage in liaison efforts with the departments, reach out to
members of congress or seek legal remedies through the court system, to be able to
try to have the system work the way its intended.

SY: So how are immigration lawyers modifying their approach to LGBT marriage
visa applications?

JG: Well for the first time since June, we can actually file such applications and know
theyre going to be adjudicated. People did file the applications before with the
understanding that they would be held for a while, some people filed them assuming
they were going to be denied and there would not be a legal challenge eventually.
But now we know that they can be adjudicated so immigration attorneys and
organization are free to work with same sex couples seeking immigration benefits
knowing that there are procedures for them to receive those benefits, what it also
means is that immigration lawyers have now to expand their understanding of what
a marriage is and what it means to be in a bona fide marriage. I dont know for
certain but I suspect that the norm of marriage between same-sex and opposite sex
couples maybe slightly different. And the expectation of the US government in terms
of what is a bona fide marriage may need to have some adjustment. Its very typical
in opposite sex marriages for Homeland security to look at, with great scrutiny, at
cases where there is a vast difference in age between the parties, or where the
parties come from different cultural backgrounds, or dont speak the same language
or have other distinctive differences between them since the Department of
Homeland Security is most used to seeing people married from the same
background and ages or with some commonalties. Some of which are geared toward
cultural expectations revolving around having children and procreating which
would be absent in same sex marriage based families. So our Homeland security is
going to now be meeting with same sex marriage based couples of very different
ages or very different cultural backgrounds, and we may not see the same kind of
commonalities that they would expect in the bona fide marriage of an opposite sex
couple. Immigration practitioners and advocates are going to be looing at that issue
obviously to see if these cases are adjudicated.

SY: What is the common mistake made by the applicant during the process? What is
something they seem to not understand or mess up on, thinking that maybe their
actions are insignificant. Just common errors.

JG: So one of the most easily mistaken issues has to do with entering the United
States. So when a person enters the state on a non-immigrant visa or a visa waiver,
the person is declaring to the airport or the border that the person has non-
immigrant intent. In other words, they do not intend to remain permanently in the
United States. And then if the person turns around and gets married and files for an
immigration benefit like a green card, which is permanent in nature, the person is
then declaring immigrant intent. Homeland looks at those cases and wonders if the
person really had no immigrant intent, when entering the United States. Failure to
possess non-immigrant intent could be considered as a fraud, creating a bar to
obtaining benefits making the person inadmissible. The only way to avoid it is to
have information from attorneys and organizations to understand that its not a rush
to come the U.S.. It has to be done with same planning as any other immigration
case.

SY: What changes in the future do you foresee affecting immigration law for the
LGBT community?

JG: One of the biggest changes will occur in state law because right now only 11 or12
states that recognize same sex marriages. As that number increases there will be an
expansion for those eligible for citizenship.





























Interview Questions

1. In what ways has the removal of Section three on DOMA (Defensive of
Marriage Act) affected the number of LGBT Marriage-visa applicants


2. What are the common personal roadblocks faced my LGBT marriage visa
applicants.

3. What kind of reservations do they have towards the marriage visa applicant
process?

4. What solutions do you foresee or think that could help ease these
reservations and kind of smooth over these roadblocks in the process.


5. How are immigration lawyers modifying their approach to LGBT marriage
visa applications?



6. What changes in the future do you foresee affecting immigration law for the
LGBT community?



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