Dealing with the Marriage question on immigration form N-400
My wife is a “resident alien”, or green card holder. We’ve been together for over 10 years, got a Washington state Registered Domestic Partnership in 2007 and got legally married in Canada in 2009. After nearly 15 years in the United States, she’s decided to apply for citizenship.
As a same-sex couple dealing with immigration issues, we’ve got it pretty easy. First, she’s from a country in good political and economic standing with the USA. But most importantly, she got her green card through employers and so is fully self-supporting and doesn’t need to rely on family unification via her marriage to an American as a reason she should be given citizenship. That’s a very good thing, since the federal so-called Defense of Marriage Act (DOMA) prevents the federal government from recognizing our marriage.
In fact, if she were here on a visa, our marriage could actually undermine her ability to stay in the country. Visa holders can have their visas revoked or their renewal request rejected if they get married or a domestic partnership. You read that right. Although the government supposedly doesn’t recognize marriages between people of the same sex, such a marriage, domestic partnership or even a twiddly Hawaiian reciprocal beneficiary can be interpreted by the federal government as an indication of intent to remain in the country past the visa expiration date. Since resident aliens are expected to stay in the country long-term anyways, our DP and marriage and any “intent to stay” they may imply wouldn’t endanger her next green card renewal.
So her naturalization application should be a breeze, right? Heh. The naturalization application, form N-400, is loaded with questions about marriage and the instructions command you twice in the General Instructions section to “Answer all questions fully and accurately”. When you’re married to a person of the same sex and the government doesn’t recognize your marriage except to possibly use it against you if you’re a visa holder, from whose point of view do you answer “fully and accurately”? From our point of view and according to the official records of the Province of British Columbia, we’re legally married. From the US government’s DOMA-addled point of view, we’re not married unless they wanted to use our DP or marriage against her if she were a visa holder. It seems like double jeopardy to me, because you can be accused of lying no matter how you answer the question. Our journey to find some advice is described below the fold.Finding a Lawyer
Initially my wife spoke with an immigration attorney who advised her to not mention being married to me since her application for citizenship doesn’t hinge on marriage to an American. However, as he hadn’t knowingly handled the immigration application of a married gay person before, and because I was concerned that his approach would fall afoul of the “fully and accurately” instruction, we decided we wanted a second opinion from someone with a record of dealing with the intricacies of LGBT-related immigration law.
Living in Seattle, we thought this would be a piece of cake because we could consult Q-Law’s website. Q-Law is an organization of Washington-based queer attorneys who post specialty-based listings on their website. It only took a few phone calls, however, to realize that while there may be queer lawyers working in firms handling immigration cases, none of those firms seemed to understand LGBT-specific concerns. Or if they did, their telephone reception staff didn’t know it or were unable to articulate it.
Next we called an attorney who we’d consulted previously on other international legal issues and were given a list of “I’ve heard through the grapevine that these fit the bill, but can’t vouch for them personally.” I’m glad she didn’t vouch for them personally because the one attorney who really seemed to have a grasp of the situation over the phone turned out in person to not even know local legal basics like the fact that Washington state doesn’t recognize same-sex marriages conducted elsewhere. In fact he argued the point with me pretty forcefully. Ignorant and tenacious – I shudder to think of the misguided advice he may be giving to clients who are less well informed.
Finally I asked some friends for possible referrals to someone who could suggest someone who might know someone who… Thankfully this is the approach that paid off, and we finally found an attorney who we’re confident has studied these questions and the related law and can give sound advice.
I’ve created such a long-winded account of our lawyer search because I want to emphasize the point that thanks to DOMA, same-sex couples face a lot of uncertainty before the law. So much uncertainty that sometimes we have difficulty finding people qualified to advise us. DOMA has placed married same-sex couples like us in a legal gray zone. It is maddening and frightening.
Advice on the “M” Question
So we settled on an attorney, but guess what? We’re still undecided about how to handle the marriage question. Our attorney advised us to either not mention our marriage, or if we did want to mention it in the spirit of fullest disclosure, to add a note that it is a same-sex marriage. It’s reassuring to know that our attorney doesn’t think either approach will cause any problems, but considering what is at stake with this application I’d have preferred a definitive answer.
This is the problem when you exclude a class of people like LGBTs from equal protection of the laws: their relationship with the law becomes unclear. And for a minority within that class of people, as international same-sex couples are, there’s little chance that your relationship to the law will have been clarified by the courts.