Entry guidance for same-sex couples at U.S. ports of entry

As reported last month, the Supreme Court has struck down the Defense of Marriage Act (DOMA). DOMA is no longer an impediment in recognizing same-sex couples under the Immigration and Nationality Act (INA), so long as the marriage is valid under the laws of the state where it was celebrated.  While other immigration agencies, like US Citizenship and Immigration Services and Deptartment of State (DOS), have issued guidance on implementation of cases involving gay and lesbian couples, Customs and Border Protection (CBP) has not yet provided information on admission of same sex couples at U.S. ports of entry.  CBP is waiting for internal advice before issuing any guidance to the field on how to administer the INA provision that permits same-sex couples to seek immigration benefits at a port of entry (POE).
Two issues that may arise at a POE:

• For citizens of all countries other than Canada, a same-sex spouse seeking admission as a dependent nonimmigrant (or derivative immigrant) would need to arrive at the POE bearing the appropriate visa.  The CBP officer would likely defer to the DOS determinations of eligibility sought.  However, the Officer could ask for documentation of the marriage at the time of admission, which would be the same evidence provided at the time of the visa interview.
• Canadian citizens, who are visa exempt,  may seek admission without a visa directly at a POE as a dependent of a nonimmigrant spouse.  In those cases, the CBP Officer would determine whether or not the marriage was legal in the state where it occurred.  The burden of proof of admissibility always lies with the applicant for admission.  Therefore, the applicant should always be prepared to show that the marriage is legal and recognized in the state where it was celebrated.

Since there is no policy in place to allow CBP to permit the admission of same-sex couples as dependent nonimmigrants, it is perfectly legal for someone to apply for this benefit.  It appears that, for now,  CBP is continuing to follow the guidance in the Foreign Affairs Manual for admission of cohabiting partners.  This allows the granting of B-2 classification to “aliens who are members of the household alien in long-term nonimmigrant status, but who are not eligible for derivative status under that alien’s visa classification.”  The B-2 is issued for up to a year and can be renewed in 6-month increments for the duration of the principal’s status.
At Berardi Immigration Law we are experienced with CBP practices at the Peace Bridge in Buffalo, NY and other ports of entry.  If you are a Canadian same-sex married couple and wish to enter in a dependent classification contact us today.