David and Fabio Plunkett live in the Denver area and recently went through a civil-union ceremony at city hall. A week earlier, they had a wedding in California, where same-sex marriage is legal.

That out-of-state marriage license is likely the ticket to eventual citizenship for the Brazilian-born Fabio in a confusing time of change for same-sex couples dealing with an already complicated immigration system.

When part of the Defense of Marriage Act was struck down by the U.S. Supreme Court on June 26 and married same-sex couples were granted the same federal benefits as married couples of the opposite sex, it prompted a flurry of immigration filings for foreign-born spouses of lesbian, gay, bisexual and transgender

Rob Huartson, left, a native Australian, and Neil Nabbefeld plan to move back to Colorado from Australia, where they have lived for the past 18 years. (Courtesy of Rob Huartson)
Americans. It also prompted a lot of questions.


"It's highly confusing for people right now. The patchwork of state laws makes it very cumbersome and burdensome," said Brad Clark, executive director of Colorado One, an advocacy group for LGBT issues.

Much of the confusion is centered on geography.

If the Plunketts had only gone through a civil-union ceremony in Colorado, their partnership would not be grounds for applying for what is called "Petition for Alien Relative."

Because they were married in California — one of more than a quarter of U.S. states that now recognize gay marriage — immigration authorities must consider Fabio's application for a green card just as if he were a foreign-born spouse in an opposite-sex marriage.

Many federal agencies look at where people reside when considering whether they qualify for federal benefits or recognition of status. But the U.S. Citizenship and Immigration Service doesn't. In the case of same-sex couples applying for a green card for a foreign-born spouse, the USCIS instead bases eligibility on "place of celebration."

Clarifications about the impact of the repeal issued by outgoing Secretary of Homeland Security Janet Napolitano earlier this month state that if a couple are married in a state where same-sex marriage has been legalized, they can qualify. A civil union in a state such as Colorado that has not legalized gay marriage is not enough.

Another factor that has raised some confusion is debate about the legality of giving equal rights to immigrants in same-sex marriages.

Former Attorney General Alberto Gonzales is arguing that same-sex marriage is precluded as a basis for immigration status because a 1982 federal appeals court ruling found that Congress intended to define a citizen's spouse in the Immigration and Nationality Act only as a person of the opposite sex.

The Obama Administration has countered that the ruling has been superseded by newer rulings and laws because it was discriminatory: The 1982 ruling said the Immigration and Nationality Act excluded homosexuals because they are "afflicted with a psychopathic personality, sexual deviation or mental defect."

While that debate continues, the administration quickly moved ahead last month to direct immigration authorities to treat same-sex couples the same in immigration matters as opposite-sex couples.

That has meant extra hours for many immigration attorneys who have been helping immigrants unravel details of the changes. There are an estimated 164,000 immigrants without documentation in the United States who identify as LGBT.

"I have been extremely busy doing this work," said Bryon Large, who is chairman of the American Immigration Lawyers Association Colorado chapter and has been working with the national association on LGBT issues relating to immigration

Large helped the Plunketts file the lengthy paperwork last week for Fabio's green card. Because Fabio was in the country legally on a student visa and has not broken any laws, he should have a work permit this fall and the green card — a legal residency card — by Valentine's Day.

"We had been living our lives in limbo. We had no ability to plan for the future for certain," David Plunkett said. "This is such a big relief."

The change is prompting another same-sex couple to move to Denver after living for 18 years in quasi-exile in Australia, where unmarried partners could be granted immigration visas there if they could prove an emotional and financial dependency on each other.

Neil Nabbefeld left his home in Colorado to join his partner, Rob Huartson, in Australia because having Huartson move to the United States was not a legal option. Huartson is a native Australian.

Nabbefeld is now ready to return to Denver to be close to his family, and the new regulations allow him to do that — with Huartson. The two plan to marry in one of the more than a quarter of U.S. states that have legalized same-sex marriage and then file for Rob's "alien relative" status.

"We trust that my visa application will be granted and that finally Neil can come home," Huartson said.

The Plunketts' dream for a future that includes citizenship for Fabio is to open a language school once Fabio completes his college education at Front Range Community College. Fabio, who speaks seven languages, is also considering law school.

"It's a great feeling to be in this country when this is happening," he said. "I feel safer now."

Nancy Lofholm: 970-256-1957, [email protected] or twitter.com/nlofholm

(Denver Post)