Protecting Permanent Residency under Same-sex Marriage

[DD/JP 0]

Hello, all. 

 

To make a long story short, I am a US citizen and my husband has been in the US as a permanent resident since May of 2023. We were married in Colombia in 2019, began his process of immigrating under the CR-1 Visa program, which eventually became an IR-1 during the long delays of the pandemic, and he was issued a Green Card around the time he relocated here in 2023. It was a long road, and now we may have more to do. 

 

Considering the current political climate, especially as it relates to immigration and LGBTQ+ rights, we are thinking about what steps we need to take in order to protect our marriage and his immigration status in the (seemingly likely) event that Obergefell v. Hodges (2015) is overturned, perhaps as soon as this Summer. My understanding is that this would send the issue of same-sex marriage back to the states, and being in Georgia, it's likely same-sex marriage would once again become illegal here. Fortunately, for now, the language of the Respect for Marriage Act (2022) should protect a certificate that we obtain in a reliably blue state. So, we're thinking of doing just that. But, I have some questions that I have not been able to answer with my research so far. 

 

1. Can anyone confirm that our Colombian certificate would, indeed, be nullified if same-sex marriage becomes illegal in the state of Georgia? I'm pretty confident the answer would be yes, even in spite of the Respect for Marriage Act, but have not been able to confirm for sure. 
2. Would there be any problem having both our Colombian certificate and a US certificate issued by, say, the state of California? I've seen that requirements for marriage licenses/certificates explicitly state that you cannot already be married, of course. But I have not been able to determine if this applies to foreign certificates. 
   • If it would pose a problem, what would we need to do? 
3. Once we have said US marriage certificate, would we need to provide any updates to any immigration authorities? 

 

Any advice would be much appreciated. Thank you all and stay resilient in these uncertain times. 

 

Derek & JP

[mam521 2,287]

You'll have to forgive my ignorance here, but why would a legally obtained marriage certificate from a different country become nullified?  Georgia isn't the issuing authority, therefore they have no say over whether or not it's valid.  The state can choose not to accept it, but they cannot invalidate it as long as same sex marriage rights exist in Columbia and as far as I am aware, same sex marriage is still recognized in Columbia today.

 

Additionally, immigration falls under Federal regulation, not State regulation.  The state of Georgia can't take away your partner's status.  Only an immigration judge can.  

[SalishSea 18,238]

1 hour ago, DD/JP said:

Hello, all. 

 

To make a long story short, I am a US citizen and my husband has been in the US as a permanent resident since May of 2023. We were married in Colombia in 2019, began his process of immigrating under the CR-1 Visa program, which eventually became an IR-1 during the long delays of the pandemic, and he was issued a Green Card around the time he relocated here in 2023. It was a long road, and now we may have more to do. 

 

Considering the current political climate, especially as it relates to immigration and LGBTQ+ rights, we are thinking about what steps we need to take in order to protect our marriage and his immigration status in the (seemingly likely) event that Obergefell v. Hodges (2015) is overturned, perhaps as soon as this Summer. My understanding is that this would send the issue of same-sex marriage back to the states, and being in Georgia, it's likely same-sex marriage would once again become illegal here. Fortunately, for now, the language of the Respect for Marriage Act (2022) should protect a certificate that we obtain in a reliably blue state. So, we're thinking of doing just that. But, I have some questions that I have not been able to answer with my research so far. 

 

1. Can anyone confirm that our Colombian certificate would, indeed, be nullified if same-sex marriage becomes illegal in the state of Georgia? I'm pretty confident the answer would be yes, even in spite of the Respect for Marriage Act, but have not been able to confirm for sure. 
2. Would there be any problem having both our Colombian certificate and a US certificate issued by, say, the state of California? I've seen that requirements for marriage licenses/certificates explicitly state that you cannot already be married, of course. But I have not been able to determine if this applies to foreign certificates. 
   • If it would pose a problem, what would we need to do? 
3. Once we have said US marriage certificate, would we need to provide any updates to any immigration authorities? 

 

Any advice would be much appreciated. Thank you all and stay resilient in these uncertain times. 

 

Derek & JP

Since there is no precedent for any of this, we can only just speculate.  I'm assuming that same-sex marriage continues to be legal in Columbia, where you married?

 

If so, and you moved to a state that keeps it legal (like California), there would be no need to "remarry."  In terms of the federal impact for US immigration, I can imagine they might take the approach the take towards marriage between first cousins:  in order to receive an immigrant benefit, the petitioner must live in one of the states where cousin marriage is legal, as well as having married in a location where it is legal.

 

Best of luck, and hopefully it doesn't come to extremes like having to move to another state.

[Lemonslice 5,002]

Another thing to keep in mind is the date when he will be able to apply to become a citizen.  If he wants to become a citizen, it might be a good idea to apply soon after that date... 

[SalishSea 18,238]

1 hour ago, Lemonslice said:

Another thing to keep in mind is the date when he will be able to apply to become a citizen.  If he wants to become a citizen, it might be a good idea to apply soon after that date... 

Great point.  OP, this is probably the path of least resistance, particularly since any extreme EOs or other actions would hopefully be tied up in the courts for awhile.   What is your husband's "resident since" date on his GC?  He can file an N-400 90 days before that date.  

[Hohverdgguu 10]

I don’t see where the state comes into immigration status. Your husband is a permanent resident under federal law. The Respect for Marriage Act defines marriage for federal law as including same sex marriage. (For foreign marriages it says the marriage will be considered valid if it was valid in the place where it occurred and could have been entered into in any US state.) It also specifies that this only need to be true at the time the marriage is entered into - so in the highly unlikely event that all 50 states decided to repeal same-sex marriage, your marriage would still be valid in federal law. So there is no need to try to get a new marriage certificate from a blue state. I don’t know that much about marriage law, but could you even get a new certificate when you already are validly married?

 

In any case, I don’t know how permanent resident status could be removed once validly granted. 
 

Now in terms of recognition of your marriage for Georgia state purposes, the Respect for Marriage Act requires states to recognize marriages performed in other states. I’ve read that this holds for foreign marriages too, but don’t see that so clearly in the wording of the Act. I probably need to do a deeper dive into the law the Act amends to understand why that’s true. 
 

So basically - I don’t think this is something to worry about. At least I’m not worrying about my own status. 

[Hohverdgguu 10]

On that state recognition point (so nothing to do with immigration), looking again at the Respect for Marriage Act, I think there is a gap in the text where it comes to state recognition of foreign marriages. I assume they just wrote the law badly, as ever. I can't find any articles that discuss this, but then the commentary doesn't really focus on foreign marriages. The general lack of intrigue about the rest of the world in American discourse has actually been one of the most jarring aspects of moving to the US for me.

 

Anyway, I think this means that if Obergefell falls - and I do think that is a big if, even if a case is very likely to reach the Supreme Court - Georgia could deny state benefits to same-sex couples married outside of the US, whereas it could not deny them to same-sex couples married in another US state. Now that would require Georgia state officials to think about foreign marriages, rather than just focussing on not issuing new same-sex marriage licenses, which doesn't seem super likely.

 

For what it's worth, if I was in your shoes I wouldn't do anything rash now, but just make sure you have basic protections in place like a will, and medical and financial powers of attorney.

 

Word of warning - I'm not a lawyer in the US, and this is not my area of law where I am qualified, so I could be talking complete nonsense. 

[P055UM 289]

5 hours ago, Hohverdgguu said:

The general lack of intrigue about the rest of the world in American discourse has actually been one of the most jarring aspects of moving to the US for me.

💯

[S2N 23]

We got married in the U.S. to start immigration before Trump, but it wasn’t because we were worried about our marriage not being recognized.

 

The difference between Roe and Obergefell is that Obergefell is widely popular, has bipartisan support, and all gay rights cases since have only expanded the rights of gay people, and were by-and-large written by conservative justices (Bostock v. Clayton County is arguably more important than Obergefell and it was written by Neil Gorsuch.)

 

Trump is hostile to trans rights, but he’s never really been opposed to gay rights in any of his campaigns of terms. I only mention that as a lot of the angst many gay people feel relates to Trump, and while I get it, he’s never really been anti-gay, at least in recent memory.

 

Anyway even if it was overruled, there’s precedent for this previously — in the 2000s and 2010s when courts would allow gay marriage then states would amend their constitutions to ban it again, anyone who was married before the re-ban was treated as married by the state that had issued the license.

Edited Sunday at 11:16 PM by S2N