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Same-Sex Marriages under Immigration Law

After years of offering civil unions as an alternative to marriage, President Obama recently expressed support for same-sex marriage. In a dramatic shift from his long-held position, Obama said that same-sex couples should be allowed to get married.

The polarizing issue of same-sex marriages has made the headlines in the United States and abroad, even in the Philippines. It is expected to be one of the social issues to be hotly debated in this year’s presidential elections.

Under the federal system of government, marriage is for state legislatures, not the U.S. Congress, to define. Same-sex marriage is prohibited in 30 states and legal in the District of Columbia and 8 states: Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, Washington, and Maryland.

For immigration purposes, however, the law that is applied is the Defense of Marriage Act (DOMA). Marriage under the DOMA must be between “one man and one woman” and a spouse is either a husband or wife “of the opposite sex”.

Because of this definition, gay and lesbian couples who are married, whether in the United States or in a foreign country, are not considered by immigration authorities to be legally married. This means that a U.S. citizen (USC) or lawful permanent resident (LPR) cannot petition his/her same-sex spouse for a green card.

The Obama administration has taken the position that the section of DOMA restricting marriage to heterosexual couples was unconstitutional and announced last year that it would no longer defend it in federal court challenges.

Several efforts have been introduced to repeal DOMA, one of which is the Uniting American Families Act (UAFA). This bill would amend the Immigration and Nationality Act by allowing a USC or LPR spouse to sponsor his/her same-sex partner for immigration to the U.S. Reintroduced in every Congress since 2000, UAFA now has more co-sponsors than ever before.

The Department of Homeland Security has also issued guidelines on prosecutorial discretion. Although the memorandum does not specifically mention gay and lesbian couples, it considers family ties a favorable factor.

Just recently, a lesbian couple in Vermont was saved from separation after USCIS granted a two-year deferred action in the alien spouse’s removal proceedings. A New Jersey immigration judge last year closed the deportation proceedings of a gay man who was married to a U.S. citizen on the motion of the USCIS that it would no longer pursue the foreign national’s removal.

Unfortunately, relief from removal such as administrative closure or deferred action does not grant lawful immigration status. The answer lies in the repeal of DOMA. Until the law is repealed or declared unconstitutional in a final court decision, its provisions would still be enforced. Since the law continues to deny recognition to same-sex marriages, homosexual foreign nationals face a constant threat of deportation.

The humanitarian considerations underpinning the movement for comprehensive immigration reform also support legal recognition of same-sex marriages. A recent study shows that there are 28,500 same-sex bi-national couples in the United States where one party is a U.S. citizen, and an additional 11,500 couples where neither party is a U.S. citizen. The study found that these couples raised nearly 25,000 children.

More than half (53%) of Americans believe that same-sex marriages should be legally valid according to a 2011 poll. With such strong numbers, it is about time for our lawmakers to recognize the need for immigration fairness and equality.

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