Visa Lawyer Blog
Tens of thousands of same-sex couples in the United States live under the threat of separation because federal law prohibits immigration authorities from treating them the same as married opposite-sex couples.
And in a country where feelings run deep on immigration and same-sex marriage, the foreign-born same-sex spouses and partners of Americans live in a unique legal limbo: In the eyes of the government, they’re neither married nor are they citizens.
It’s an emotional and financial burden. They can’t leave the country to see loved ones for fear they won’t be allowed back. They might not be allowed to work or get loans to pay for college. If they’re deported, they can be barred from re-entering the U.S.
If a U.S. citizen marries a foreigner of the opposite sex, he or she can apply for a green card for the spouse to stay in the country and eventually become a citizen. That process isn’t available to about 28,500 same-sex couples, however.
The 1996 Defense of Marriage Act blocks same-sex couples from receiving a variety of federal benefits that are available to opposite-sex married couples, including ones involving immigration. And it doesn’t matter if they’re married or in civil unions, or they live in one of a growing number of states that recognize same-sex marriages.
Pew Research Center poll in October showed that 52 percent of U.S. Roman Catholics support same-sex marriage, a higher percentage than the 46 percent of Americans overall who back it.
Congress is divided, too. The Respect for Marriage Act, which would repeal the Defense of Marriage Act, has co-sponsors in almost a third of the House of Representatives and the Senate. The Uniting American Families Act, which would give same-sex couples the same immigration rights as opposite-sex ones, has a similar level of support in both chambers.
At the other end of the political spectrum, 32 House lawmakers have signed on to legislation to amend the Constitution with a definition of marriage as being between one man and one woman, which would further complicate the immigration cases among same-sex couples.
There are an estimated 28,500 binational same-sex couples and nearly 11,500 same-sex couples in which neither partner is a U.S. citizen. None of these 40,000 couples are eligible to use the immigration preferences available to different-sex spouses. These couples are raising almost 25,000 children. Among the binational same-sex couples, the countries most represented are Mexico (25%), Canada (8%), and the United Kingdom (6%), and one-fourth live in California. Among noncitizens in binational couples, 45% are Latino/a and 14% are Asian/Pacific Islander.
President Barack Obama, the son of a binational straight couple, also illustrates the conflict.
He supports gay rights generally, but not same-sex marriage. He also supports a comprehensive immigration overhaul, and he said in a speech in Texas last May that, “I don’t believe the United States of America should be in the business of separating families. That’s not right. That’s not who we are.”
But he didn’t address the immigration rights of same-sex couples in the speech, and the White House refused this week to comment on where the president stands.
Last summer, the Department of Homeland Security issued new deportation guidelines that prioritized the cases of immigrants with serious criminal records. It appeared to give agents some extra discretion in cases that involve binational gay couples. But the DHS says that until Congress repeals the Defense of Marriage Act or the courts strike it down, the administration will enforce it.
This is a Hot topic and we will keep monitoring and reporting for our readers.