I-601A Provisional Waiver Victory for Same-Sex Couple

The Law Office of Karen Winston is a proud supporter of the LGBTQ community. We love using our immigration law knowledge and experience to assist gay, lesbian, and transgendered immigrants and their families achieve their immigration dreams.

U.S. immigration policies have historically discriminated against LGBTQ couples until recently. A major example is that prior to 2012, USCIS would not recognize a person’s gender transition unless that person provided evidence of undergoing sex reassignment surgery. Additionally, until 2013, same-sex couples were denied immigration benefits based on marriage until the U.S. Supreme Court declared the Defense of Marriage Act (DOMA) unconstitutional in Windsor v. United States, 570 U.S. 744 (2013). In that landmark decision, the Supreme Court held that the federal government, including USCIS, cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections.

Even now, LGBTQ immigrants may face unique challenges in applying for immigration benefits. Our office recently secured an I-601A provisional waiver for a same-sex couple. Although the applicant’s home country was well-known for societal discrimination against the LGBTQ community and despite the common knowledge that a same-sex couple could not safely live “openly” in the country, USCIS at first indicated they would deny the waiver request. USCIS found that although our clients may encounter discrimination if forced to relocate abroad, such hardship did not rise to a level greater than the hardship ordinarily present when a couple is facing this situation.

Our office was able to effectively demonstrate that this was simply not true and that the hardship faced by a same-sex couple residing in that particular country would surely cause extreme hardship to the couple, and especially to the U.S. Citizen who was confronted with the heartbreaking choice of remaining in the U.S. without his spouse, or relocating to a country hostile to LGBTQ couples in order for the couple to remain together. This should have been a no brainer as the unique and compelling hardship in this type of case is obvious, especially in a country well-documented as having open hostility and discrimination against members of the LGBTQ community, including prohibiting same-sex marriages altogether. This case shows the importance of having an attorney experienced in and passionate about representing same-sex couples and families, especially one who is also willing to aggressively challenge arbitrary requests for evidence (RFEs) or denials from USCIS in similar types of cases.

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