Visa Lawyer Blog
While many gay couples in New York tie the knot on Sunday, when same-sex marriage becomes legal in the state, Ashley Abraham-Hughes and her wife, Corinne, will be watching the festivities from the other side of the Atlantic.
That’s because since U.S. federal law still does not recognize same-sex marriage, and since Corinne is British, the couple was forced to move to Britain, where their union — they wed in Connecticut in 2009 — is legal.
“While I do still love the U.S. and I always will, I am very resentful of the fact that I was effectively forced to become an expat,” said Abraham-Hughes, a 27-year-old who grew up in Pittsford in western New York and now lives in Manchester. “It’s absolutely ridiculous, and I just think the thinking on this whole issue is completely wrong.”
The couple’s plight is one likely facing many of the estimated 36,000 binational gay couples in the U.S., where the foreign partner in the relationship can face deportation and a 10-year ban from returning to America if they don’t already have or find a legal way to stay in the country.
The Defense of Marriage Act, or DOMA, enacted by Congress in 1996, blocks federal recognition of same-sex marriage, thereby denying various benefits given to heterosexual couples — such as the right to immigrate. Thirty-seven states have defense of marriage acts, while six states and the District of Columbia allow same-sex marriage, according to the National Conference of State Legislatures.
(California has also ruled in favor of same-sex marriage, but the state currently does not allow them to be performed because Proposition 8, which defined marriage as being between a man and a woman, was passed six months after the initial ruling. A judge then ruled the Proposition 8 amendment as being unconstitutional, and that ruling is now under appeal.)
So for couples in which one partner is not American, state-level approvals of same-sex marriage do little to change their immigration status. Some of those who have overstayed their visas have been deported, though in recent months a number of couples have won reprieves from judges who have indicated they are waiting to see how the law regarding these kinds of cases may evolve, Soloway said.
“It (DOMA) was a pre-emptive rollback of civil rights that is unique in our history,” he said. “In the case of immigration, it has its cruelest manifestation because it means that somebody’s husband or wife is going to be deported only because they are gay.”
Calls to the Justice Department seeking comment on the DOMA same-sex marriage cases were not immediately returned. An official of the U.S. Citizenship and Immigration Services said the agency would continue to enforce the existing law.
But in a significant shift, President Barack Obama — who supports repealing DOMA — has given his backing to the proposed Respect for Marriage Act, White House spokesman Jay Carney said Wednesday.
“I can tell you that the president has long called for a legislative repeal of the so-called Defense of Marriage Act, which continues to have a real impact on the lives of real people — our families, friends and neighbors,” Carney said. “He is proud to support the Respect for Marriage Act … which would take DOMA off the books once and for all. This legislation would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as straight couples.”
But in the current legal reality, some same-sex binational couples are going into exile, plunking down a lot of money to remain in the U.S. or fighting deportation.
Argentina last year approved same-sex marriage, joining a number of other countries, such as the Netherlands, Canada, Belgium, Norway and Sweden. Attitudes toward gay marriage are changing in the United States, where a Gallup poll released in May showed that for the first time a majority of Americans — 53 percent — think the law should recognize gay marriage and that gay and lesbian couples should have the same rights as heterosexual ones. That was up sharply from 1996, when only 27 percent of Americans supported gay marriage.
The poll noted that Republicans and older Americans remain opposed, but an exception is Ashley Abraham-Hughes’ father, a 68-year-old who described himself and his wife as conservative Republicans.
“This issue has, you know, caused us to really do a lot of soul searching. Our ideas and our opinions are that the way things are today, there’s a place for all of us in God’s world,” said Brian Abraham. “We feel very strongly that gay people should have the same rights as anyone else.”
He said the family missed his daughter — the oldest of three children — “terribly” and “if we had our way she would be living stateside.”
He hoped his daughter and her wife would soon share the same benefits as heterosexual couples: “I think we’ll be a stronger nation for it.”
For the Abraham-Hughes couple, they’ve rejoiced in the approval of same-sex marriage in New York, but also endured the many questions from loved ones about when they can move back to the U.S. — to which the answer is for now, they can’t.
“So many people don’t realize that the choice of whether to get married or not, that’s just one part of what marriage equality means. It’s not just whether you can marry the person you love, it’s whether you can share all of the benefits that you should be able to have,” said Corinne, 28, who works for a finance company. “It comes down to which country we can live in. Can Ashley come home to her country, to a country that I love, too, and would love to move back to.”