Possible Issues for Same-Sex Couples at Airports & Ports of Entry to U.S.

To date, no guidance from Customs & Border Protection (CBP) about DOMA decision’s effect on protocol

As has been widely reported, on June 26, 2013, the U.S. Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional and opened the door to a variety of federal benefits, including immigration benefits, to same-sex couples. The federal government acted quickly to begin issuing federal immigration benefits to such couples, including green cards to same-sex spouses of U.S. citizens.

Unfortunately, one government agency has yet to issue guidance to its agents about the change in the law. The Customs & Border Protection (CBP) agency, which administers the lawful admission of all individuals, including foreign nationals, at all U.S. airports, sea ports, and land ports of entry, is still awaiting internal guidance from its legal department in Washington, D.C. regarding the admission of immigrant and nonimmigrant same-sex spouses. Moreover, no definite timeframe has been given on when such guidance will be issued. Until then, same-sex spouses may encounter problems being admitted to the U.S. if their status is dependent on their marriage.

The biggest concern relates to foreign nationals with Canadian passports. Many Canadians are not required to apply for a visa before traveling to the U.S., and therefore, their admission is first reviewed by the CBP officer at the airport or other port of entry. A Canadian spouse in a valid same-sex marriage who intends to enter the U.S. as a nonimmigrant dependent based upon his or her marriage (ex. H-4, L-2, TD, F-2, J-2, O-3, etc.), may have problems being admitted because there is currently no CBP policy in place to permit the admission of same-sex couples as dependent nonimmigrants.

Additionally, non-Canadian foreign nationals may face difficulties being admitted to the U.S. in a dependent nonimmigrant status based on their valid same-sex marriage, even if they have a valid visa from a U.S. Consulate or Embassy abroad. In such instances, the CBP officer may still request proof of a legal marriage to a nonimmigrant in the relevant status, and may deny admission to such dependents because there is currently no CBP policy in place to admit them.

Until the CBP issues guidance consistent with the U.S. Supreme Court decision in United States v. Windsor, it may continue to admit into the U.S. foreign same-sex spouses of nonimmigrants in B-2 tourist status. This is permitted in the Foreign Affairs Manual (FAM) for “aliens who are members of the household of another alien in long-term nonimmigrant status, but who are not eligible for derivative status under that alien’s visa classification.” In the alternative, a nonimmigrant and/or attorney may contact the CBP office in advance of travel to the U.S. to request admission in the dependent classification on a case-by-case basis. Please contact an immigration attorney at Minsky, McCormick & Hallagan, P.C. if you or your loved one may be impacted by the CBP’s delay in issuing guidance for same-sex spouses.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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