Immigration Laws & Same-Sex Couples
On 26 June 2013 the Supreme Court of the United States struck down the Defense of Marriage Act (DOMA) via their ruling on the case United States v. Windsor. For the first time legal same-sex marriages are recognized by the United States government at the federal level. The result of this ruling has direct impact for LGBT binational couples.
During a talk at the U.S. Embassy London in the United Kingdom on 2 August 2013 U.S. Secretary of State of John Kerry announced Visa Changes for Same-Sex Couples.
Following Secretary Kerry's announcement the Department of State hosted a Google+ video hangout reviewing the change in guidelines. Click to watch the Google+ hangout.
Same-sex binational couples seeking advice on how to proceed with marriage and fiancée visa petitions (i.e. "green card applications”) are encouraged to view these resources:
- After DOMA: Immigration from Lambda Legal
- The End of DOMA: What Your Family Needs to Know from Immigration Equality
- On the East Coast, the law firm, Masliah and Soloway offers free consultations to same-sex binational couples. Email them at firstname.lastname@example.org.
- On the West Coast, the law firm McCown and Evans offers free consultations to same-sex binationals. Please contact them at (415) 834-9123, or email email@example.com.
If you or an LGBT person you know is faced with immigration issues, please suggest they contact one of the following organizations:
AILA (American Immigration Lawyers Association)
AILA attorneys are advocated to include LGBTIQ people and same-sex binational couples in the latest prosecutorial discretion option that has kept several couples together while we waited for the repeal of DOMA.
Helping win asylum cases worldwide.
Seeks equal application of U.S. immigration law toward lesbian and gay couples; resource and support network for bi-national relationships. Also advocates for persons facing HIV/AIDS discrimination and for those seeking asylum based on sexual orientation.
Immigration Family Guide from FileRight
Immigrating to a new country is not an easy endeavor, and this is not only in reference to the legal aspects of immigration. The processes, the forms, the waiting periods, the fees, yes, all of these can be very confusing and frustrating. However, the most troublesome part is in leaving one familiar place to permanently reside elsewhere, a place with a different language and different culture than yours. For immigrants, everything is strange and new, and though this might be the very thing that is exciting about moving to a new place, for many immigrants, the circumstances have been less than ideal. Having the company of family may be the only thing that makes immigration less difficult.
International Gay & Lesbian Human Rights Commission
Supports claims for asylum made by those who fear persecution because of sexual orientation, gender identity or HIV status. They document human rights abuses perpetrated against lesbians, gay men, bisexuals, the transgendered, and people with HIV/AIDS.
** Love Exiles Foundation
The Love Exiles Foundation supports GLBT couples who were forced into exile in order to be together and they work for human rights for same-sex couples and families.
NCLR (National Center for Lesbian Rights)
This is a national legal organization and they provide a free 30 minute consultation. You do not have to be a lesbian!
Report from the Williams Institute, 18 November 2010: As Many as 40,000 Same-Sex Couples Could Benefit if U.S. Immigration Law Treated Same-Sex and Different Sex Couples Alike - These Couples Are Raising Nearly 25,000 Children
News from 2013:
US Department of State Announces Guidelines for Same-sex Couples - 2 August 2013, Immigration Equality
Breaking Down Immigration Rules for Same-Sex Binational Couples - 1 July 2013 HUFFPOST GAY VOICES
Homeland Security Confirms Same-Sex Binational Couples Can Get Green Cards - 1 July 2013, The Advocate
The End of DOMA: What Your Family Needs to Know - 26 June 2013, Immigration Equality
Lesbian & Gay Couples Eligible for Green Cards Following Supreme Court Decision on Defense of Marriage Act - 26 June 2013, Immigration Equality
Many of the saddest personal stories we've heard at Marriage Equality USA are from binational couples. Same-sex partners of U.S. citizens and permanent residents were faced with the prospect of deportation because of the absence of legal marriage rights. Often times both partners left family and friends in the United States for countries that accept gay couples, or couples lived apart, in two separate countries for years. Families were divided. Marriage matters because American citizens have the right to fall in love with someone from another country. However, in the case of gay people, our government essentially told us NOT to fall in love, to accept our second-class position, and to allow our loved one to leave, never to return.
U.S. immigration is largely based on the principle of family unification, which allows U.S. citizens and legal permanent residents to sponsor their spouses (and other family members) for immigration purposes. Same-sex partners of U.S. citizens and permanent residents, however, were not considered "spouses" and were hence excluded from family-based immigration rights. Thousands of lesbian and gay binational couples have been kept apart, torn apart or forced to live in fear of being separated.
Until 26 June 2013 lesbians, gay men, bisexual and transgender Americans in relationships with foreign nationals had no legal way to bring their partners into the United States.* The foreign partner would have to qualify independently, usually by demonstrating some special skill that is needed by employers in the United States. This is very difficult to do, as many people lack the specific skills sought by the U.S. Citizenship and Immigration Services (USCIS). Even if they possess these skills, they would still be subjected to the strict quota limits on legal immigration. U.S. immigration law would also tear apart a foreign same-sex couple if one of them were to get a job in the United States. The spouse of a married heterosexual person would be permitted into the country, but the partner of a gay man or lesbian would have to be left behind.
The situation was further exacerbated by the passage of the so-called Defense of Marriage Act (DOMA) in 1996. DOMA ensured that for federal purposes including immigration, marriage was defined as between a man and woman. Thus, even if one's home state recognizes same-sex marriages, these couples were not recognized as "married" for relationship purposes. Also, couples who have legally married outside of the USA in countries where same sex marriage is permitted (currently: the Netherlands, Belgium, Canada, Norway, South Africa, Spain, and Sweden) could not immigrate together to the U.S. even when one of the spouses is an American citizen.
Some couples tried to enter into "green card" marriages with an opposite-sex American man or woman willing to provide them with the "cover" needed to maintain their relationship. Not only did this create tremendous hardship for all involved, it could also lead to prosecution by the INS where the accomplice, partner and immigrant could all face jail terms, hefty fines and deportation of the immigrant.
Some gay and lesbian Americans chose to relocate with their partners to a more welcoming country, often Canada. Go to Love Exiles for more information.** Bruce MacDonald and Suratin "Jeng" Rianpracha are one such couple. MacDonald said: "I'm upset and angry that I have to leave my country to live with the man I love. This experience has alienated me from the U.S. political system. On the other hand, every individual American I know has been very supportive. My straight friends and colleagues are incredibly upset. I think the vast majority of people in this country are way ahead of the politicians on this issue."
Until 26 June 2013 the United States was the only industrialized English-speaking country that did not grant same-sex partners immigration preferences. Recognizing legal same-sex marriages at teh federal level in the United States eliminates the immigration hurdle facing binational same-sex couples.
(Note: The United States Immigration and Naturalization Service (INS), now referred to as Legacy INS, ceased to exist under that name on 1 March 2003, when most of its functions were transferred from the Department of Justice to three new components within the newly created Department of Homeland Security (DHS), as part of a major government reorganization following the September 11 attacks of 2001. These three components include U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP).)
Comprehensive Immigration Reform (CIR)
In a devastating development for LGBTIQ binational couples and families, Senator Patrick Leahy withdrew his amendment to the Comprehensive Immigration Reform bill on 21 May 2013. “I don’t want to be the senator who asks people to choose between the love of their life and the love of their country,” Leahy said. Click to read The DOMA Project Press Release - Senate Democrats Abandon Gay Americans, Yield to GOP Threats on Immigration Reform.
Introduced by Congressman Jerrold Nadler (D-NY)
Marriage Equality USA is proud to have publicly endorsed the Permanent Partners Immigration Act of 2000. Although our work is focused solely on marriage equality, we felt this bill is necessary so that bi-national couples can receive federal protection until marriage becomes a reality. We ask all our members to support this very crucial bill.
Because many same-sex couples are barred from legal marriage in the states where they live, more than 1,138 Federal rights which are triggered by this legal status are also denied. Among them is the right to sponsor a same-sex spouse or partner, who is not American, for citizenship. By denial of the most basic right of legal marriage, American citizens, who have a same-sex partner, often find their family ripped apart when visas run out, and the foreign partner must leave the country. Or, their foreign partner is not allowed to legally work to help support their family.
Rep. Jerrold Nadler (D-NY) described the U.S. policy of forced separation of binational same-sex couples as, "Not only a question of equality and rights. It's also a question of gratuitous cruelty."
Nadler came up with a solution to this denial of access to the immigration process. On February 14 (Valentine's Day), 2000, he filed a bill to allow a U.S. citizen with a same-sex foreign partner to sponsor their foreign partner for immigration. The bill (HR3650) was named Permanent Partners Immigration Act of 2000.
The bill has since been reintroduced several times. The most recent bill, now known as Uniting American Families Act (UAFA) was introduced on 21 June 2005. As of Spring 2013 this legislation still had not been passed.
Rationale in Support of the Immigration Bill
U.S. Immigration policy purports to support and promote family unity. Because same-sex couples are family, these policies should include the families of same-sex couples.
There are currently 17 major world countries which allow the sponsoring of a same-sex partner for immigration. These are:
- New Zealand
- South Africa
- United Kingdom
- United States
The United States should be in the forefront of recognizing basic human rights for its own citizens. Economist Alan Greenspan has testified that increasing immigration is key to keeping our economy booming. Greenspan also favors increasing the number of "H1B cap" work permits allowing foreigners to work here for a specific time. Senator Orrin Hatch has introduced a bill to increase the H1B cap for the next several years. Because a great number of same-sex partners are here using this type of permit, allowing them access under the UAFA would free up additional H1B work permits.
To send a message to your representative in the House, you may use the House's Web site: Write Your Representative www.house.gov/writerep