LGBTI Binational Couples and Immigration Reform
Posted by Yael Nagar on Tue, May 14, 2013 at 15:18 pm
In 1977, when my mother was 19 years old, she dropped out of SUNY Binghamton and moved to Israel. She was following her heart—more specifically, her cute Israeli boyfriend Ehud from her English class. After a while in Israel, Mom enrolled at Hebrew University in Jerusalem.
By a twist of fate, the women’s dorms were under construction when she moved in, so she ended up living next door to my dad. She couldn’t have known they’d end up together, but my dad seemed to know from the start. He immediately asked her out, even going so far as to plan himself a birthday party just so he’d have something to invite her to. She resisted, insisting that she had a boyfriend, but he wouldn’t give up. Eventually she broke down, broke up with Ehud, and started dating my dad. They fell in love and two years later were married, finished their studies, and moved to the U.S. so Mom could pursue a master’s degree at the University of Maryland. Luckily for my parents, the U.S. immigration law is largely based on a premise of family unification, so my dad gained citizenship by virtue of being married to my mom. My parents settled down in Maryland, had four kids, and the rest is history.
Unfortunately, the family unification premise that was so crucial for my parents only goes so far, currently leaving 36,000 same-sex binational couples excluded and living in limbo. Let’s imagine a parallel scenario: Mom dropped out of college, moved to Israel, met a nice Jewish girl, and fell in love. Mom and her partner wanted to get married, so what did they do? Well, they couldn’t get married in Israel or in America, or anywhere, for that matter, since in 1979 same-sex marriage wasn’t legal anywhere in the world. So it seems they were stuck not able to get married, and Mom certainly not able to sponsor her partner to get citizenship in the U.S.
Of course, we have taken significant strides in same-sex marriage rights since 1979. For argument’s sake, let’s imagine Mom and her partner meet and fall in love in 2013. Thankfully, today Mom would have more options. They can even get married in Maryland—hoorah! Problem solved, right? Not quite. Here’s the tricky part: marriage in the U.S. goes by state, but immigration laws are determined on the federal level, meaning that the federal government needs to recognize a marriage as legitimate for immigration purposes. Thanks to the Defense of Marriage Act (DOMA), signed into law in 1996, on the federal level marriage is defined as between a man and a woman. This means same-sex married couples are denied 1,138 rights that opposite-sex married couples enjoy, one of which is the ability to petition for a spouse or partner to immigrate to the U.S. and gain citizenship. So, even if Mom and her partner do get married, they will still be forced to live in limbo, either in separate countries or in the U.S. in fear of deportation and heavy fines. What’s worse is that this applies to all same-sex binational couples, including refugees who are escaping trauma and persecution.
The situation for same-sex binational couples often seems bleak, but there are three possible paths to a solution currently on the table-- passing the Uniting American Families Act (UAFA), the repeal of DOMA, which was argued in the Supreme Court on March 27th, and amending the recently introduced immigration reform legislation to include UAFA and grant immigration rights to same-sex couples.
UAFA would revise the Immigration and Nationality Act to include the words “or permanent partner” every time the word “spouse appears.” The bill, first introduced by Rep. Jerrold Nadler in the House in 2000 and reintroduced by Sen. Patrick Leahy in the Senate in 2003, would not change the status of same-sex marriage on a federal level, but it would allow U.S. citizens to sponsor their non-U.S. citizen partners for permanent residency. It has been reintroduced every term since, but has failed to pass.
Another option, and one that has been the news quite often in recent months, is repealing DOMA in the Supreme Court. The case was argued on March 27th with many predicting that it will be repealed and deemed unconstitutional on the grounds that it tampers with states’ rights to declare marriages legitimate. This would create significant changes because the a repeal of DOMA would mean that a U.S. citizen who marries a same-sex partner in one of the nine states where same-sex marriage is legal would be able to gain back those 1,138 federal rights, including sponsoring a spouse for immigration.
The most recent development in this debate is the possibility that comprehensive immigration reform efforts, spearheaded by the notorious “Gang of Eight,” a bi-partisan group of senators, may be amended to include a provision allowing same-sex binational couples immigration rights. Many are currently advocating strongly for this option, as comprehensive immigration reform has a lot of momentum right now and many expressed dissatisfaction that the original bill did not include such a provision. There is some debate, however, as to whether including this provision could endanger the passage of The Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744.
The truth is, any of these options would allow Mom—and thousands of other people in binational same-sex couples, including refugees—the opportunity to live with the one she loves in the country she calls home. Often there are many paths to social change, and as immigration activists who value equality and fairness, it is our responsibility to support all of them.