ollowing the U.S Supreme Court's decision in Windsor
v. United States, 570 U.S. ___ (2013), granting recognition
of marriage for federal benefits, LGBT immigrants find
themselves in a variety of legal postures seeking immigration
benefits. is article addresses those LGBT immigrants seeking
waivers or relief that require a showing of hardship.
Unlawful presence waivers and waivers for certain criminal
activity or fraud will require the applicant to demonstrate that
a certain qualifying relative will suffer extreme hardship if the
applicant is denied admission to the United States. Applicants
for Cancellation of Removal under INA §240A(b) will need to
demonstrate the higher standard of exceptional and extremely
unusual hardship. In many cases, the applicant's spouse is the
qualifying relative. us, practitioners should examine closely how
the couple's sexual orientation affects the hardship analysis. For
same-sex couples, or for couples where one spouse is transgender,
there are many issues that are not present in cases presented by
their opposite-sex couple counterparts.
Hardship for the LGBT Immigrant Spouse
by Scott C. Titshaw , Ally Bolour , and Bryon M. Large, Sr.
A crowd rallies outside the U.S. Supreme
Court on Mar 27, 2013, as the court
hears arguments on the Defense of
Marriage Act and California's Prop 8.
PHOTO BY MARK WILSON/GETTY IMAGES