DOMA Ruling Opens Immigration Door For Same-Sex Couples
There has been plenty of analysis of the impact of the U.S. Supreme Court striking down the Defense of Marriage Act, the federal law that stopped married same-sex partners from enjoying federal marriage benefits. But one overlooked aspect of DOMA's demise is the impact on immigrants, specifically on "binational" couples made up of one U.S. citizen and one non-citizen.
It's always been easier for an immigrant married to an opposite-sex American citizen to obtain a "green card" allowing permanent residency in the U.S. But now, according to Connecticut lawyers with immigration and LGBT practices, many same-sex couples are also taking advantage of their federally recognized marriage status and applying for green cards for the non-U.S. citizen partner.
The result, said the lawyers, is a much more direct path to permanent residency status for many immigrants. The attorneys also say the trend will likely result in fewer immigrants being deported, and in some already deported immigrants being reunited with their partners. In many cases, it will end years of anxiety and uncertainty.
"Seeing people's lives change this dramatically has been astonishing," said Meghan Freed, of Freed Marcroft in Hartford, whose practice focuses on gay, lesbian, bisexual and transgender clients.
Danbury immigration lawyer Cynthia Exner said that so far, she has already helped about same-sex 25 couples through the process of getting green cards for the foreign partner. "It's been very exciting. It's thrilling. We've waited so long for this," said Exner, who also has an office in Port Chester, N.Y.
Attorney James Welcome, who practices in Waterbury, Danbury, and New Haven, represents a same-sex couple who got married in 2006. One partner was ordered deported in 2009. That client was allowed to stay in the U.S. while Welcome appealed the deportation on other grounds. But now, with DOMA out of the way, Welcome's path to legal victory is much easier. Speaking of all his binational clients, he said: "Of course I have seen happiness. In other cases, there is a sense of relief."
In June, the U.S. Supreme Court declared a key portion of the Defense of Marriage Act unconstitutional because it allowed the federal government to discriminate against married gay couples for the purposes of determining federal benefits and protections. The ruling makes same-sex couples eligible for more than 1,000 federal benefits. Although much of the focus has been on tax and medical benefits, also included is the right of a U.S. citizen to sponsor a spouse for legal immigration.
"Immediate relatives" of United States citizens are potentially eligible for green cards, or permanent residency in the United States, Freed said. The U.S. Department of Homeland Security's Citizenship and Immigration Services considers spouses to be immediate relatives. But before this year's Supreme Court ruling, binational same-sex couples were ineligible for these relationship-based immigration petitions because their marriages were not recognized by the federal government.
And so, before the ruling, Connecticut binational same-sex couples needed to find other ways to try to stay together in the United States. Often the foreign national spouse applied, with the sponsorship of an employer, for a work visa. Others claimed to be refugees from their home countries or submitted petitions for asylum.
Freed explained that some lesbian and gay individuals may be eligible for asylum or refugee status if they can prove their sexual orientation — or politics or ethnicity — could make them targets of persecution. But, she added, "the alternative routes to green cards are significantly more challenging paths to permanent residency than one based upon a bone fide marriage, and many same-sex married couples found themselves separated by oceans or facing deportation."
Exner said some of her same-sex clients have been in relationships since the 1990s and come into her office crying with relief over the news that they had an easier path to a green card. Nevertheless, she said, some are still worried about the process because they have faced bias for so long. "It's a sensitive issue," she said. "Because people have been so secretive [about their same-sex relationships] for so long, we have to encourage them."
She said that all of her 25 or so clients are on their way to getting green cards for their partners. None have gotten them yet. So she is keeping an eye on how they are treated at interviews at federal immigration offices or at the U.S. consulate in the country where the foreign partner is from. "They worry that the [immigration] officer isn't going to be accepting," she said. "They experienced discrimination for so long, it's hard to get used to that."
Exner added: "I want my clients to tell me, 'How did the officers treat you?' We'll let the government know if we have a problem."
The precise process varies depending on current marital status and the location of the foreign partner.
For couples who are married, but where the foreign spouse is currently living outside the U.S., the American spouse can submit a relationship-based petition and the foreign spouse can apply for an immigrant visa through the U.S. consulate in the foreign spouse's home country.
For partners who are not already married, the American partner can sponsor the foreign partner to come to the country on a K1 fiancé or fiancée visa, which will let the two to marry in the United States. After the marriage, they can then file a relationship-based permanent residency application.
Exner is representing a client, Emilie Arseneault, of Canada, who is hoping to come here on a fiancée visa. She met her partner, Alecia Elizabeth Picket, of Woodbury, at Union College in New York They kept up their romance through weekend visits — Picket often takes a Greyhound bus to Canada. She also bought her fiancée an engagement ring at Tiffany's.
"I have letters from Tiffany's wishing them well," Exner said, adding that she will use the letters, among other documents, to support the fiancée visa.
Once Arsenault is allowed to move to the U.S., the couple must marry within 90 days. Because Canada recognizes same-sex marriages, Exner expects the process at the U.S. Consulate in Canada to go smoothly. "There should not be a problem with this one," she said. •