Does The Uk Recognize US state-level Same Sex Marriages
July 20, 2011 6:41 PM   Subscribe

I'm a dude going to marry a dude in New York State. Said dude I am going to marry is a resident alien from the UK. Will the UK recognize the marriage? Does he become an American Citizen by marrying him? Does that counteract his UK citizenship? What are my rights, here?
posted by The Whelk to Law & Government (27 answers total) 5 users marked this as a favorite
You should absolutely speak to an immigration lawyer if you want to know what your legal rights are. However, the US government is currently in a big political fight over the future of the Defense of Marriage Act. Currently, there is no way to become an American citizen by marrying a person of the same sex (and in fact citizenship is never granted automatically to foreigners who marry Americans--they have to apply and go through several years of paperwork). However, that may change in the future, and other countries have different laws, so you definitely need to speak to an attorney who understands those laws to figure out what rights and privileges you both have in both countries.

Also, congratulations and best wishes for your new family!
posted by decathecting at 6:45 PM on July 20, 2011 [2 favorites]

Mazel tov! I'm a dude who was in a longterm domestic partnership with a resident alien dude from the UK. Gay marriage is not recognized on a federal level; it won't grant him US citizenship. It may also may make filing taxes twice as much of a pain as it used to be. (In California, we had to file federal taxes separately, but figure out what we would have paid had we filed together, so we could use that number on our state taxes.)

I'm not sure about what rights your marriage gives you in the UK. The last time I checked was in the late 90's.

My advice won't surprise you: CONSULT AN IMMIGRATION LAWYER BEFORE GETTING MARRIED. Especially if your partner wants US citizenship someday.
posted by roger ackroyd at 6:48 PM on July 20, 2011 [4 favorites]

Congratulations. Please do consult an immigration lawyer before you do anything, though, as the disjunction between state and federal law can actually lead to your spouse's visa being revoked.

Getting gay married cannot help your partner get citizenship, but can be taken as de facto "intent to overstay one's visa." This is to say that with respect to federal law getting married cannot help you -- but it can hurt you.

Once DOMA is overturned, as it eventually will be, this will no longer be the case.
posted by gerryblog at 7:01 PM on July 20, 2011 [3 favorites]

Response by poster: He doesn't have a visa, he has a resident alien card and has been in the US for over 20 years.
posted by The Whelk at 7:06 PM on July 20, 2011

"Does he become an American Citizen by marrying him? "

Even if you were heterosexual, no. I've sworn a bunch of affidavits for my BFF's Norwegian husband on his path to US citizenship. (Basically, to the effect that it isn't a green card marriage but that they're genuinely in love and have a life together.)

Imagine the total chaos and abuse of the system if a marriage ceremony granted citizenship, oy.

FWIW, he's decided to stop at permanent resident status for now ... even if a non-citizen marries a citizen, the non-citizen is in no way obligated to seek citizenship within a certain period or anything. It's an option, but it's neither automatic nor a requirement.
posted by Eyebrows McGee at 7:06 PM on July 20, 2011 [2 favorites]

Most of the above answers are focusing on the US side of things, as well they should — US immigration law is full of hidden & counterintuitive traps. However, you did ask about your union's status in the UK as well. A little Internet sleuthing leads me to conclude that the UK does recognize "civil partnerships" entered into in most US states; see Schedule 20 of the Civil Partnership Act of 2004 (also here.) Note that New York is not on the list, though that may just be a matter of the Act having not yet been amended; unions entered into in jurisdictions that are not explicitly listed can still be allowed, but apparently they have to meet certain other requirements set out in another section of the act. To have your marriage recognized, you (or, technically, your fiancé) has to send the appropriate documents to the UK consular section in Washington; more info here.
posted by Johnny Assay at 7:09 PM on July 20, 2011

Will the UK recognize the marriage?

Yes! But no! The UK recognizes foreign same-sex marriage as a civil partnership, not as marriage. Most, but not all, of the rights are equal (immigration is, if that's your concern). There is a list of jurisdictions from which a legal union is recognized as a civil partnership in the UK, and I know it includes US states. New York only recently passed their law, so it probably needs to be updated.

As always, get a lawyer, and don't take my word for it.
posted by Jehan at 7:11 PM on July 20, 2011

Response by poster: There is a far chance of moving to to the Uk within the next five years, would I be eligible for a British passport or involvement in the NIH? I know nothing about the British system, but I'd like to know what rights I have.
posted by The Whelk at 7:14 PM on July 20, 2011

The UK Lesbian & Gay Immigration Group may be able to help.
posted by roger ackroyd at 7:18 PM on July 20, 2011 [1 favorite]


If he has been in the US for 20 years, and has been a resident alien for (at least) the past five years, he can definitely apply for US citizenship and become a citizen. Married or not, heterosexual or not. Whether he will be able to retain dual citizenship depends if the UK allows it. The U.S. definitely allows it. I am a dual citizen.

Consulting a lawyer is definitely a good idea though! Good luck!
posted by Flotte Biene at 7:19 PM on July 20, 2011

There is a far chance of moving to to the Uk within the next five years, would I be eligible for a British passport or involvement in the NIH? I know nothing about the British system, but I'd like to know what rights I have.

My understanding is that citizenship requirements for civil partners are the same as for married partners.

I don't know what the NIH is.
posted by Jehan at 7:21 PM on July 20, 2011

On the UK side, there's a similar arrangement: conditional leave to remain, then indefinite leave to remain, then the option of taking British citizenship.

Last week saw the launch of the government's latest consultation on immigration, this time focused on family-based migration, which suggests that regulations may change in the nearish future to establish income requirements and an extension of the probationary period.
posted by holgate at 7:22 PM on July 20, 2011 [1 favorite]

Response by poster: er I meant the National Health and like social welfare benefits. Again, I know nothing.
posted by The Whelk at 7:23 PM on July 20, 2011

"I don't know what the NIH is."

I think he means the NHS. The NIH in the U.S. is the government's health research agency, the National Institutes of Health. You can see the mental transposition. :)
posted by Eyebrows McGee at 7:26 PM on July 20, 2011

"Am I entitled to NHS treatment when I move to England?" (Short answer: yes.)
posted by holgate at 7:28 PM on July 20, 2011

NHS is generally available (minus some services) to ordinary residents regardless of status, so you'll be fine.

Social security is a different matter, and there are time restrictions within which you cannot claim. Indeed, to migrate you also need to show the ability to support yourselves without welfare before entry.

As always, consult some more. I've never had to do this personally.
posted by Jehan at 7:29 PM on July 20, 2011

If anything ever called out for getting an attorney's advice, this is it. Also consider talking to a solicitor in the UK.
posted by jeffamaphone at 7:31 PM on July 20, 2011

The UK Border Agency website is really something you should be looking around. It'll will give you a preliminary idea of what you can and can't do, or what the requirements might be.
posted by Jehan at 7:34 PM on July 20, 2011

In truth, I'm not sure if this is an "get a lawyer! yesterday!" situation. Doing so may give you peace of mind, but the immigration and citizenship issues are, at least for the moment, pretty settled, and this doesn't sound like an edge case. (Unlike, for instance, that of Andrew Sullivan, whose residence in the US was on a non-immigrant visa, on account of the HIV+ ban.)

As a long-time permanent resident, your intended's status won't be affected either way by getting married; as Flotte Biene said, even with DOMA on the books, he's theoretically eligible for citizenship in his own right, should he desire it.

The regulations on civil partnership recognition in the UK are also well-established and relatively straightforward; the only place where a legal opinion is going to be specifically useful is to deal with satisfying section 214 compliance while NY marriage isn't on Schedule 20.
posted by holgate at 8:59 PM on July 20, 2011

There is a far chance of moving to to the Uk within the next five years

This may sound weird, but moving to the UK would be a good reason for your beau to take out US citizenship if he can. It would preserve his and your ability to travel back to the US without hassles.
posted by ROU_Xenophobe at 9:42 PM on July 20, 2011 [2 favorites]

He doesn't have a visa, he has a resident alien card and has been in the US for over 20 years.

I had a Green Card and lived in the US with that card for sixteen years. It took about three of those years to get citizenship (without marriage).

If you two can wait that long, he could apply for citizenship now, with or without the federal gov't recognizing your marriage.

And congratulations to you two! I'm so very envious.
posted by Blazecock Pileon at 10:24 PM on July 20, 2011

Congrats Mr. The Whelk and the future Mr. The Whelk! Wouldn't it be awesome if you could get MrMoonPie to travel up to NY and marry you guys. It'd be like a MetaFamily event!

I just wanted to send my good wishes and chime in with the rest who say that even if you were a hetero couple your fiance would not get automatic citizenship when you get married.

My sister married a Mexican citizen who was in the country illegally. They have been together for 10 years and have 4 kids and he's still only a resident alien. They got tired of jumping through hoops a few years ago and just decided that it's easier and less expensive for him to remain a RA than to try and keep fighting for citizenship.
posted by TooFewShoes at 11:24 PM on July 20, 2011

He doesn't have a visa, he has a resident alien card and has been in the US for over 20 years.

The Whelk, his legal status and eligibility for US citizenship is independent of your marriage. he is already eligible for naturalization, in fact he was so 15 years ago. So that is something that can be done independent of your legal status together and in fact, should be done so, as its always faster than family based visa and green card issues.

Also I can recommend a lawyer specializing in the area of civil contracts and if he doesn't know the implications abroad he will find out from the best resources there are.
posted by infini at 1:04 AM on July 21, 2011 [1 favorite]

Congrats to you and your lovely and excellently-named man.

From the UK perspective, Holgate (above) nails it. The UK is quite good on family/partner immigration - as long as you are the long-term partner of someone eligible to live in the UK, you are able to immigrate. Don't have to be married or in a civil partnership, can be same or opposite sex. All you need is to have been living together in a relationship for more than two years (full details here).

You (as the partner) would not be eligible for public funds. This means unemployment benefit, housing benefit, and similar. You would be eligible for healthcare through the NHS.
posted by Infinite Jest at 2:07 AM on July 21, 2011

If you're thinking of moving to the UK, you should definitely check out the truly excellent UK Yankee, which has loads of resources and excellent, detailed forums.

My wife and I (straight, but the process is essentially the same regardless of orientation) are just coming out of the other end of the process (i.e. citizenship for her). It takes a while and costs quite a bit, but it's worth it. If you're thinking of going for it, I'd do it sooner rather than later. Family-based migration is the one area they haven't clamped down on, and they're looking for ways to do it.

posted by Happy Dave at 4:04 AM on July 21, 2011

As folks point out, this is a rapidly-evolving situation here in the states. My wife and I have performed several bi-national same-sex weddings in DC in the last year, and have talked to lots of folks about such things--everybody is hearing different things and having different experiences. It'll have a lot to do with what lawyer you get and how big a deal you want to make all of this. The law is being worked out right now, and you could be some sort of test case, or you could wait and see how things settle out. But I bet the real, true deal next year will be different from the real, true deal today.
posted by MrMoonPie at 7:26 AM on July 21, 2011

He would not become an american citizen because same sex marriage is still not recognized by the federal government
posted by majortom1981 at 9:26 AM on July 21, 2011

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