Canadian Citizens - Dependent Status for Same Sex Spouses

Canadian citizens entering the U.S. in TN, L-1, H-1B, or any other employment-based nonimmigrant status may bring their families with them in a dependent status such as TD, L-2, H-4, etc. Those in same-sex marriages should be able to bring their spouses with them as well, under a 2013 Supreme Court decision, United States v. Windsor. Windsor broadened the federal definition of “marriage” to include homosexual marriages. It declared unconstitutional section 3 of the Defense of Marriage Act, which restricted the grant of federal benefits based on marriage only to marriages between a man and a woman. Since Windsor, any federal statutes which grant a benefit to a couple based on marriage must do so equally to those in heterosexual and homosexual marriages, so long as the marriage is legal in the jurisdiction where it occurred.

Shortly after the Windsor decision came down, the U.S. Department of State and USCIS issued guidance on the impact of the decision on their adjudications. They immediately implemented new policies and procedures for the handling of marriage-based immigration benefits for same sex couples.

The only immigration agency that failed to issue guidance on Windsor, and shamefully still has not done so to this day, is US Customs & Border Protection (“CBP”). This lack of guidance is not a problem for the vast majority of nonimmigrants entering the United States, however, because most foreign nationals require a visa to enter the country. They receive their visas at US Consulates abroad, which are run by the Department of State and thus follow DOS's Windsor guidance in issuing visas. If these individuals appear at a port of entry, CBP will admit them so long as they have the proper visa and are otherwise admissible.

So who does this lack of guidance affect? Canadian citizens. Since Canadians are visa-exempt, they apply for dependents' status directly at the port of entry. For example, the spouse of a TN nonimmigrant typically would appear at the border with only proof of the TN spouse's status; their original long form marriage certificate; and $6 USD to pay for the I-94. The spouse would then be admitted in TD status.

Same sex spouses of Canadian citizens, under Windsor, are eligible to apply for, and to be granted, this benefit. But because CBP headquarters has failed to issue guidance to their officers in the field instructing them to grant spousal immigration benefits in same sex cases, officers at the border are left to their own devices to figure out how to handle these cases. The results vary. At some ports, same sex spouses are reportedly being given dependent status. At other ports, CBP officers are continuing to admit same sex spouses as “cohabitating partners” in B-2 visitor It has been nearly two years since Windsor, and CBP still has failed to issue guidance. It would appear that the only way the agency will issue guidance is if it is forced to do so, which may only be accomplished through litigation.

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