Immigration Legal Issues



Immigration Legal Issues

Issues

The United States' immigration legal framework regulates the flow of people into the country by generally requiring some type of connection between the intending immigrant and an individual or business already present in the United States.

One of the primary features of the Immigration and Nationality Act (INA) is that the individual or business must “petition” for the intending immigrant's admission into the country as a lawful permanent resident. In the case of an individual petitioner, the petition must be predicated on a preexisting familial relationship. However, the INA strictly limits the universe of family members who may petition for an intending immigrant through its definition of the concepts of “family” and “spouse.” (U.S.C. § 1101, 2012)

This Article will focus exclusively on the “spouse” category and the interpretation of “marriage” within the immigration legal framework, including how the term has been defined and limited throughout time, as well as the legal effects of those limitations.

Rules

An Overview of “Marriage” in U.S. Immigration Law

Prior to the passage of the Immigration and Nationality Act of 1952, immigration law in the United States consisted largely of a patchwork of provisions primarily focused on excluding immigrants based upon their country of origin.

Not until 1952 did Congress develop the legal framework for petition-based immigration predicated upon family relationships. This policy of family reunification and preservation has become one of the defining policy goals of modern immigration law, although the reality of the current immigration system falls far short of that goal (U.S.C. § 7, 2012).

The stark difference between policy ideal and practical reality rings particularly true for same-sex families who have been excluded from participation in the family-based immigration system. This exclusion first took the form of agency policy and federal court decisions, because Congress did not ...