Immigration Laws & Same-Sex Couples
(Recommended immigration resources listed at bottom of page.)
Most Recent News:
Don Quixote: Gay and Immigrant Icon - 22 April 2013, ABC News/Univision Article by Arturo Conde Quotes MEUSA Board President Cathy Marino-Thomas and Board Member Robert Lassague
Immigration bill excludes LGBT people - 17 April 2013, San Diego Gay & Lesbian News
Obama administration issues written deportation guidelines (stipulating that gay and lesbian bi-national couples are families) - 9 October 2012, Washington Blade
Many of the saddest personal stories we hear at Marriage Equality USA are from binational couples. Same-sex partners of U.S. citizens and permanent residents are sometimes faced with the prospect of deportation because of the absence of legal marriage rights. Often times both partners leave family and friends for countries that will accept gay couples. Marriage matters because American citizens have the right to fall in love with someone from another country. But in the case of gay people, our government is essentially telling us NOT to fall in love, to accept our second-class position, and 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, are not considered "spouses" and are hence excluded from family-based immigration rights. Thousands of lesbian and gay binational couples are kept apart, torn apart or forced to live in fear of being separated.
Currently, lesbian, gay men, bisexual and transgender Americans in relationships with foreign nationals have 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. Under current law, 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. (If you are in a same-sex binational relationship, please be sure to read the information listed below for Stop the Deportations - The DOMA Project.)
(Note: The United States Immigration and Naturalization Service (INS), now referred to as Legacy INS,ceased to exist under that name on March 1, 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).)
The situation was further exacerbated by the passage of the so-called Defense of Marriage Act (DOMA) in 1996. This ensures that for federal purposes including immigration, marriage is defined as between a man and woman. Thus, even if one state recognizes same-sex marriages in the future, these couples would not be 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) cannot immigrate together to the U.S. even when one of the spouses is an American citizen.
Some couples try to enter into "green card" marriages with an American man or woman willing to provide them with the "cover" needed to maintain their relationship. Not only does this create tremendous hardship for all involved, it can also lead prosecution by the INS where the accomplice, partner and immigrant can all face jail terms, hefty fines and deportation (for the immigrant).
Some gay and lesbian Americans have chosen 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 says: "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."
Today the United States is the only industrialized English-speaking country that does not grant same-sex partners immigration preferences. Legalizing same-sex marriages in the United States would eliminate the immigration hurdle facing binational same-sex couples, but there are other mechanisms through which this goal could be achieved.
The United States should not stand alone among the industrialized English-speaking world in continuing this discriminatory practice against gay and lesbian families.
Congress should require the INS to establish a registry for same-sex couples so they may immigrate together as a family. As examples of how this might work, Congress could look to the policies enacted by the countries discussed in this Note, or to the domestic partner ordinances enacted in numerous municipalities throughout the United States, or to the framework established by some state courts.
Permanent Partners Bill - Uniting American Families Act (UAFA)
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 same-sex couples are barred from legal marriage, 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 current 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 June 21, 2005. As of Spring 2011 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 16 major world countries which allow the sponsoring of a same-sex partner for immigration. These are:
- Australia
- Belgium
- Brazil
- Canada
- Denmark
- Finland
- France
- Germany
- Iceland
- Israel
- Netherlands
- New Zealand
- Norway
- South Africa
- Sweden
- United Kingdom
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.
Current Status of the Immigration Bill
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
Immigration Resources
If you or someone you know is faced with this situation, please tell them to contact one of the following organizations.
AILA (American Immigration Lawyers Association)
AILA attorneys are advocating to include LGBTIQ people and same-sex binational couples in the latest prosecutorial discretion option that has kept several couples together while we await the repeal of DOMA.
asylumlaw.org
Helping win asylum cases worldwide.
Immigration Equality
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 Equality intervened on behalf of a couple in San Francisco and got their Congresswoman (Nancy Pelosi) to engineer a 2-year "stay", allowing the foreign partner to remain in the US even though his visa expired. They are working on a similar case for a couple in Vermont.
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 have chosen or are considering exile in order to be together and works 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!
Out4Immigration No U.S. citizen should be forced to choose between home and partner!
A volunteer grassroots organization that addresses the widespread discriminatory impact of U.S. immigration laws on the lives of Lesbian, Gay, Bisexual, Transgender and HIV+ people and their families through education, outreach, advocacy and the maintenance of a resource and support network.
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
* Stop the Deportations - The DOMA Project STOP THE SEPARATIONS. END THE EXILE.
We invite potential DOMA project participants to contact us if they are same-sex binational couples who are married (or planning to marry) and who want to join our campaign to end discrimination in immigration law. With the exception of our DOMA Project participants, we do not encourage any married same-sex couple to file an I-130 Petition for Alien Relative as such a petition will be denied and the filing of the petition may have significant negative consequences on the foreign spouse's future eligibility for various non-immigrant visas, or precipitate removal proceedings if that person is in the United States without lawful status. Any binational couples considering marriage should consult THE DOMA PROJECT or other qualified attorney or appropriate gay rights organization to discuss the potential consequences for eligibility for non-immigrant visas and to address other immigration related concerns. To learn more about our DOMA Project, contact us here. Your story is a vital part of winning this struggle. Lavi Solloway, Stop the Deportations attorney, has managed to keep several couples together and stop in-process deportations. Article 2 August 2012 from Stop the Deportations/The DOMA Project: VICTORY! Obama Administration Recognizes Marriages of Gay and Lesbian Binational Couples, Expanding Deportation Policy to LGBT Families
