How will the recent California Supreme Court ruling affect my resident status?

May 18, 2008 3:51 PM

How will the recent California Supreme Court ruling affect my resident status?

So I'm a boy, and I'd like to marry the boyfriend, who is a resident of California.
Me, I am a student from another country. I need an F-1 visa to get into the States.

So will marrying him affect my residency status in any way?
Will it give us any additional benefits?

posted by anonymous to law & government (14 comments total)

Visas are a Federal function. Under the Defense of Marriage Act of 1996:

The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.

posted by Class Goat at 4:10 PM on May 18, 2008

Yeah, it won't count. Sorry.
posted by rtha at 4:16 PM on May 18, 2008

A little more from Equality California's FAQ.
posted by scody at 4:43 PM on May 18, 2008

The current situation in California is unlikely to last for long. In 2000 the voters of California passed a ballot measure banning gay marriage with 61.4% voting for the ban.

The California SCOTUS decision overturns that law, on grounds that it violates certain provisions of the California State constitution. The decision made no reference to the US Constitution, and the California State constitution can be changed by a ballot measure.

And it probably will be. The "Limit on Marriage Amendment" will almost certainly be on the California ballot in November. The likelihood is that it will pass just as easily as the 2000 law did, and California SCOTUS can't overturn it except on grounds that it violates the US Constitution. So far no court in the nation has done anything like that despite numerous appeals by supporters of gay marriage.

So the most likely scenario at this point is that gay marriage in California will be legally recognized until November, and then cease to be.

As mentioned, none of this affects the Federal government in any way, including in regards to immigration law. As to "additional benefits", then for the moment in California a gay marriage would be the same as any other marriage (e.g. regarding things like health insurance benefits).

But if that amendment passes, then it once again would not be.

Anyway, none of this has any effect whatever on your Visa status.
posted by Class Goat at 4:47 PM on May 18, 2008

NCLR FAQ

Relevant quote: "Important Note: Binational couples in which one member does not have permanent legal resident status in this country and anyone serving in the U.S. military should consult with an attorney with expertise in these areas of law before getting married."
posted by gingerbeer at 5:02 PM on May 18, 2008

(Note: The acronym SCOTUS only works for the Supreme Court of the United States. This decision was rendered by the California Supreme Court.)
posted by gingerbeer at 5:04 PM on May 18, 2008 [1 favorite]

[few comments removed - please do not turn this into a debate about future california politicking, thanks]
posted by jessamyn at 5:24 PM on May 18, 2008

As of now, nothing. I do remember that Obama made a statement that he would mirror any state-granted rights (like filing joint on a tax return, green cards, etc) on a Federal level for same-sex marriage a while ago at the Logo debate (found it on his website as well), so there is a distinct possibility that policy will be more gay-friendly in the near future. Of course, who knows whether that'll get through or not.

Asides from that, the House has the Uniting American Families Act which has been in committee hell forever. Should that pass, it sounds like even if California passes a Constitutional Amendment against same-sex marriage, the domestic partnership laws would be enough for a green card.

This is all, of course, theoretical.
posted by Weebot at 7:41 PM on May 18, 2008

IANAL, but a foreign friend of mine was advised by her immigration attorney that it would be unwise for her to marry or enter into a civil union with her girlfriend, even though they lived in a state where it was legal for them to do so, while she was seeking legal residency in the US. Her attorney told her that individual immigration officials have a quite a bit of discretion, and that some might see her marriage or civil union as an attempt to circumvent federal immigration law and not look kindly on her (otherwise perfectly valid) application for a visa or green card because of it. Additionally, some immigration officials may have a personal prejudice against gay people, so you may not want to make it obvious that you're gay unless you have to. She was advised to wait until she had a green card of her own before entering into a legal relationship with her girlfriend. I have no way of verifying this information, but that's what my friend told me that her lawyer told her. Sorry.
posted by decathecting at 7:51 PM on May 18, 2008

As a few other people have said, the state's recognition of same-sex marriage won't matter to the Federal Government as it officially does not recognize same-sex marriages -- or even civil unions, afaik.

Unfortunately, there's nothing like that to speed up the visa process. If you do get married, it'll be nice for California and Massachusetts and a couple state which recognize out of state gay marriage, but nothing more than a piece of paper to the Fed and 26 other states who've banned same-sex marriages outright.

Sorry :-(
posted by Gular at 8:03 PM on May 18, 2008

(Note: The acronym SCOTUS only works for the Supreme Court of the United States. This decision was rendered by the California Supreme Court.)

You are right; I botched that up.
posted by Class Goat at 9:38 PM on May 18, 2008

Not at this time, unless you have good lawyers, a lot of money, and a favorable ruling from the Supreme Court of the United States.
posted by oaf at 12:39 AM on May 19, 2008

I have heard the same piece of advice as decathecting when researching the same question.
posted by Your Time Machine Sucks at 7:31 AM on May 19, 2008

Not only will being gay not help you, it could actively hurt you get permanent residence in the US.

As part of the green card process, you have to get a physical exam. One of the questions on the form for the physical addresses sexual deviancy.

When my friend went through the physical exam, the doctor asked him "Are you a sexual deviant?" When asked to clarify what it means to be a "sexual deviant", the doctor said, "Do you have sex with men, or do you fantasize about having sex with children?" Answering yes to this question would make him classified as a sexual deviant, which is grounds for him to be denied a green card.

I thought there was no way this could be true, so I looked up Form I-693, the medical form that must be filled out as part of a green card physical. Sure enough, "sexual deviancy" is a Class A Condition - right up there with chronic alcoholism, insanity, and gonorrhea.
posted by betterton at 2:57 PM on May 19, 2008