Yesterday the U.S. Department of Homeland Security published a proposed new rule in the Federal Register, to amend 19 CFR Part 148, "regulations regarding U.S. returning residents who are eligible to file a single customs declaration for members of a family traveling together upon arrival in the United States." What DHS proposed to do is to "expand the definition of the term 'members of a family residing in one household' to allow more U.S. returning residents to file a family customs declaration for articles acquired abroad."
The Customs and Border Protection (CPB) agency within DHS states two reasons for doing this; to reduce the amount of paperwork that Border Protection agents have to deal with, facilitating faster processing of passengers coming in through border crossings and airports, and to "more accurately reflect relationships between members of the public who are traveling together as a family."
What HDS proposes to do, in effect, is to recognize non-traditional families, including LGBT families, as part of this rules change. The proposed change recognizes the reality that American families take many different forms, and that the traditional definition in the existing rules is much too narrow. Under the revision, CPB will include foster children, stepchildren, half-siblings, legal wards, other dependents, and individuals with an in loco parentis or guardianship relationship within the definition of "members of a family residing in one household." They are also planning to recognize couples who are not legally married (or, presumably, if same-sex couples legally married in a state, not recognized by the federal government as married due to Section 3 of DOMA) under a new term: "domestic relationships."
This is, at least as to same-sex couples, a "work-around" from DOMA's requirement that the federal government not recognize same-sex couples as married or the partners in a same-sex marriage as spouses. Instead, the new rule will broadly sweep in "two adult individuals in a committed relationship wherein the partners share financial assets and obligations, and are not married to, or a partner of, anyone else, including, but not limited to, long-time companions and couples in civil unions or domestic partnerships." The notice cautions that this term "would not extend to roommates or other cohabitants not otherwise meeting" the proposed definition. And the proposal would not change the existing rule that eligibility to file a family declaration as opposed to individual declarations requires that the family members actually live together in one household as their "last permanent residence" and "intend to live together in one household after their arrival in the United States." CPB avoids the DOMA problem by not expressly mentioning same-sex couples married under state law, but presumably such individuals would qualify under the
If it is stated that the purpose of the new rule is to “more accurately reflect relationships between members of the public who are traveling together as a family”, then the purposed rule should be modified not to include: “wherein the partners share financial assets and obligations”, which imposes a higher standard than spouses who may travel as a family.