In my many years of practicing immigration law I have seen numerous loving binational couples (one a US citizen and the other a citizen anywhere else) who have sought out legal counsel so that they can remain together in the U.S. For opposite sex couples, the solution is usually pretty simple. Our immigration system favors family relationships, particularly those between husbands and wives when one is a U.S. citizen. Yes, there can be tricky timing and travel considerations but for the most part this process simply requires filing joint paperwork and waiting for the arduous bureaucracy to churn through the process. I’ll never forget when I explained to one couple that they would be separated for many months waiting for approvals if the foreign spouse left the U.S. as initially planned after his 90 day visit. The prospective husband asked me if I’d mind leaving my office for ten minutes or so, which surprised me but I dutifully did so. I learned that he got on bended knee in front of my desk and asked his American girlfriend to marry him right then and there. Fortunately she said “yes”, so I was comfortably able to return to my office, offer my congratulations, and start the paperwork.
Things do not happen so easily for same sex binational spouses, however. Over the years I’ve met with numerous couples who simply want to be able to live together in the U.S., but despite state or foreign recognized marriages they cannot because the Defense of Marriage Act (“DOMA”) prohibits the granting of federal benefits, such as immigration status. In the best scenarios, the foreign spouse has top level education, experience, and a cooperative petitioning employer to file employment-based immigration paperwork. For example, Canadian born Jack Gilad, whom who we profiled in Green Card Stories, was able to get immigrant status through his employer so that he could live permanently with his spouse, Doug Hauer, and their two parrots.
Many others have to cobble together solutions such as extending scholastic programs far longer than normal for those on student visas or applying for annually renewable artist visas (for those who are talented enough to qualify). Some couples might also take turns visiting one another in their respective countries on tourist visas, giving up stable jobs and time with other family members to do so. None of these temporary solutions are satisfactory and my clients live in fear that one day something will happen to make it impossible to continue along these lines: a dancer’s injury; a denied visa renewal; a loss of financial stability.
In rare cases we have been able to get political asylum for gay or lesbian individuals who have a legitimate fear of persecution in their home countries. These claims have been possible since 1994, when then Attorney General Janet Reno acknowledged that persecution for sexual preference is a basis for asylum.
At present there are estimated to be at least 35,000 binational same sex couples living in the U.S. Some couples have given up on living in the U.S. altogether and have gone to live in one of 19 countries around the world that currently grant immigration benefits to same sex couples (provided the foreign national spouse has status there.) It is difficult to know how many couples have left the U.S. to live abroad, but it stands to reason that there are at least as many as those who have remained. In a letter last year to President Obama, Richard Brendan described how difficult the decision he made over twenty-five years ago to leave behind his family has been. In seeking the President’s support for legislation that would unite same sex binational families, he wrote, “Please do not allow future generations to grow old without their parents, siblings, nieces and nephews, cousins, aunts, uncles and of course childhood friends. You are not expected to understand what this does to one’s spirit for life.”
In the worst cases, where there are no immigration options either to live abroad or to get visa extensions in the U.S., couples make the difficult decision for the foreign spouse to live in the underground hell of an undocumented person, unable to get work permission or even driver’s licenses in most states. The DOMA Project tells numerous stories of couples in this situation on their site called, "Stop the Deportations". These couples live in fear not only of detection and permanent separation from their partners, but also of the appalling conditions that immigration detention facilities can present to LGBT individuals. Currently, such facilities are not bound by the Prison Rape Elimination Act (PREA), which mandates that jails follow certain protocols to protect inmates against sexual violence. The Department of Justice has found that PREA does not fall within ICE’s purview and civil rights complaints have been filed.
DOMA, which is the only obstacle blocking the grant of immigration benefits to foreign nationals married to same sex spouses of U.S. citizens, was found to be unconstitutional by the Obama administration a year ago, at least as to Article 3, which is the clause prohibiting foreign spouses in lawful marriages from being granted immigration benefits. The administration announced back then that it would no longer expend resources in defending DOMA’s constitutionality. This opened the door for a recent lawsuit, in which Immigration Equality has brought together five married, binational gay and lesbian plaintiffs, all of whom have been in long term relationships. Their stories are in many ways the same as those of opposite gender couples who have remained together for years, sharing life’s joys, burdens and in some cases the experience of raising children together.
Some people agree that when same sex couples choose to live together they shouldn’t be discriminated against, but that it is going too far to grant them the rights and responsibilities of marriage. After all, if they care so much about remaining together then they can prepare wills and directives that will pretty much have the same effect, right? Well, no. I’m witness to the significant and sometimes tragic burdens imposed on same sex binational couples and their families that cannot be fixed through these directives. The problem cannot even be fixed by getting lawfully married in states that recognize their right to do so. I have long thought that the time is ripe for us to do something about this and look forward to a favorable outcome in Immigration Equality’s challenge to DOMA. Even before that, our administration has the power to stop deporting same sex marital partners, and it should take steps to do so immediately. As the White House website states: President Obama believes [that]… Americans with partners from other countries should not be faced with a painful choice between staying with their partner or staying in their country.’
And if some of you are still not persuaded, let me end with a binational couple's story that illustrates the absurdity of our government trying to regulate these matters of the heart. Years ago the foreign partner entered the U.S. as a male and had a sex change operation. She then fell in love with an American woman who wanted to marry and sponsor her for immigrant status. Told by other lawyers that their situation was hopeless under DOMA they came to see me. Based on my experience a number of years earlier with the denial of a transsexual woman’s marriage to an American man, I told them that in transsexual cases the government took the position (at that time) that the only gender that mattered (even with anatomy to the contrary) was the one on the foreign spouse’s passport. In this case the foreign spouse’s passport listed her as male, so I suggested they just go ahead, get married, and file their paperwork. I even called the Immigration Service to discuss it ahead of time and the supervisor agreed that this was an approvable case. And as far as I know, this same sex bi-national couple approved years ago by the Immigration Service has lived happily ever after (and with no adverse consequences to anyone.)
Laura Danielson is the chair of the Immigration Department at Fredrikson & Byron. She has been an immigration lawyer since 1989, is a frequent speaker at national and international conferences, and teaches immigration law at the University of Minnesota Law School. She is also co-author of Immigration Law in a Nutshell and co-editor of Green Card Stories (www.greencardstories.com). As a member of the Alliance of Business Immigration Lawyers (www.abil.com), a premiere group of twenty-one U.S. lawyers, she has been especially active in developing its global consortium of immigration practitioners in countries throughout the world. Splitting her time between Minneapolis and Fredrikson & Byron?s Shanghai office, Laura is committed to developing and providing global and investment-related immigration services, particularly EB-5 matters for foreign investors. Concentrating on arts, business and investor-based immigration, Laura works with companies, investors, and other professionals in non-immigrant and immigrant visa matters. She also has expertise in I-9 audits, employer sanctions, family immigration, asylum and naturalization matters.