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Equality For LGBT Bi-National Couples

As the immigration reform debate advances, there is an ever stronger glimmer of hope for lesbian, gay, bisexual and transgender (LGBT) couples of mixes American and foreign citizenships. Historically and presently, LGBT Americans face the agonising choice between being separated from their loved one who must depart at the end of their US visa, often after many years of living in the USA , or themselves leaving the county they've called home their entire life and relocating with their partner to a nation with equal legal protections for LGBT couples. One of the numerous bi-national couples to have faced this difficult situation has been recently featured in a NY Times article, available here. (http://www.nytimes.com/2013/02/18/us/with-no-shortcut-to-a-green-card-gay-couples-leave-us.html)

A foreign national's ability to immigrate to the USA is complicated by the fact that immigration law is federal law, trumping any contradicting state legal provisions. Therefore, even if a same-sex couple is legally married in a state such as Washington or Vermont, or a country such as Spain, they cannot derive immigration law benefits from a marriage because of the federal law known as the Defense of Marriage Act (DOMA). DOMA limits valid marriages for immigration purposes to those entered into by a man and a woman.

However, times are changing. A recent poll shows that 59% of Americans support same-sex marriage, and President Obama has stated that he believes DOMA to be unconstitutional. The US Supreme Court is due to hear two important arguments in March 2013: in United States v Windsor, whether DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under state laws; and in Hollingsworth v Perry, whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as a union of a man and a woman, as the state did under its controversial Proposition 8.

The hearings before the US Supreme Court could not come soon enough for LGBT couples. Although Department of Homeland Security (DSH) Janet Napolitano [Secretary of the US department which enforces US immigration laws] expressed support for equal treatment of couples, whether same- or different- sex, under immigration laws, she was unable to provide assurances that a same-sex partner of an American citizen would not be deported in the interim period because her agency is still charged with enforcing DOMA. A US Supreme Court ruling invalidating DOMA would allow same-sex bi-national couples the ability to derive family-based immigration benefits.

DHS has already offered some relief to partners of LGBT Americans. Under guidance issued to immigration officers, DHS mandated that "long-term, same-sex partners" are to be considered family for purposes of exercising prosecutorial discretion in deporting undocumented immigrants.

If the immigration system is reformed to equalise treatment of same-sex couples, LGBT Americans would be able to petition for their spouse to immigrate to the USA under the current family-based immigration legislation. Critics worry that opening the immigration system to same-sex couples will result in increased immigration fraud. Such concerns should be diminished by the fact that criminal and civil penalties attach to fraudulently filed petitions, and the DHS Secretary herself rejected such concerns as baseless. "Our adjudicators are experienced at fraud, fraud detection," Napolitano said. "We've actually increased the number of examiners who focus on this. This is done primarily at [U.S. Citizenship & Immigration Services]. But, no, we don't see that as a barrier to achieving equality."

Critics also dismiss this issue as a divisive, marginal issues. But for the same-sex families caught up between a proverbial rock and a hard place, relief couldn't come soon enough. And for the many more who have had to be separated for months, years or decades, or those who live as "love exiles" in another country in order to be with their partner, the immense difference that reformed legislation will make to their lives cannot be overstated.

The American Immigration Law Office extends a heartfelt welcome to LGBT applicants and their families to our office, and we look forward to assisting with your US immigration matter.