Ask someone from the United States what ideals the U.S. holds as a nation, and he or she will likely tell you: freedom, equality, liberty, and justice. Yet the U.S. in many ways has a long journey ahead toward arriving at those lofty values, including within the areas of immigration and LGBT rights. Up until last week, U.S. citizens and immigrants in bi-national same-sex marriages were forced to choose among love, family, or country as their marriages were not recognized by the U.S. government for immigration purposes. The government’s non-recognition of bi-national same-sex marriages was due to the Defense of Marriage Act (“DOMA”). DOMA denied same-sex married couples the same federal benefits granted to opposite-sex married couples: over 1,100 provisions. These benefits carry over to immigration, including spousal visa and green card sponsorship, and also presented hardships to children raised in same-sex married households, including bi-national families composed in part by immigrants. Children in families headed by a bi-national same-sex couple were particularly vulnerable to their family being separated due to DOMA’s interference with immigration law.
However, on Wednesday, June 26, 2013, the country moved forward along its path towards justice. The United States Supreme Court issued its long-awaited decision regarding the case of United States v. Windsor, related to the constitutionality of DOMA, originally signed into law in 1996. Specifically, Section 3 of DOMA codified the non-recognition of same-sex marriages for all federal purposes, including insurance and other benefits for federal government employees and military personnel, Social Security survivors’ benefits, the filing of joint tax returns, and immigration. Prior to arriving at the Supreme Court, Section 3 was already found unconstitutional in eight federal courts, including the First and Second Circuit Court of Appeals, on issues relating to bankruptcy, public employee benefits, estate taxes, and immigration. The Court’s 5-4 decision, finding DOMA unconstitutional under the equal protection clause of due process, inscribes June 26, 2013 into the list of dates prominent in the United States’ tumultuous civil rights history.
The Court’s decision striking down DOMA has significant positive ramifications for all same-sex married couples in the United States, including federal employees and military families. But in terms of immigration law, the decision positively impacts the tens of thousands of bi-national same-sex couples and their families whose lives up until last week remained in limbo.
DOMA Directly Impacted Citizens and Immigrants
As DOMA is a federal law, it directly impacted immigration, which also falls under federal jurisdiction. Regardless of whether a U.S. citizen and his or her same-sex immigrant spouse reside in a U.S. state with marriage equality, and are legally married in that state, DOMA made them ineligible for federal marriage benefits granted to opposite-sex married couples. Although this law posed countless challenges to all same-sex married couples, there were particular challenges foisted upon bi-national same-sex couples. The obvious direct challenge for a couple in which one person is foreign-born is that the U.S. citizen or legal permanent resident could not sponsor his or her same-sex spouse to reside in the United States on a spouse visa or green card. For an opposite-sex married couple, that would not be an issue. But for same-sex couples in the U.S. in which one of the individuals is foreign-born, under DOMA there was no avenue for that person to come to the U.S. as the spouse of his or her same-sex U.S. citizen or legal permanent resident partner. He or she would only have been able to reside in the U.S. through other immigration routes such as employment-based immigration.
If a foreign-born spouse in a bi-national couple was residing in the U.S. on an employment-based visa, there was a continual risk that he or she would have to depart the country if the visa was not renewed. When that occurs, the couple would be faced with very difficult decisions. Do they stay together within the United States, with one of the individuals becoming undocumented? Do they live separately in two different countries? Or do they both find a new home in another country with marriage equality, becoming part of a growing diaspora of U.S. citizens residing abroad because they are not recognized as equal under the law within their own country? Due to the untenable situations bi-national couples frequently face, further difficult decisions include those regarding care for aging parents and other family members as well as comforting their children who also face the prospect of their family becoming separated or having to uproot to another country they have never known. Indeed, Laura Lichter, 2012-2013 President of the American Immigration Lawyers Association, sums up these challenges in the following statement:
We have seen firsthand the incredible toll of this unconstitutional discrimination. Any American would agree that being forced to choose between your homeland and your loved one is a heartbreaking choice.
Bi-national Couples Under DOMA Had Untenable Options
Specifically, under DOMA tens of thousands of bi-national same-sex couples were often forced to resort to extreme measures in order to remain together. These might include one of several options. In one instance, the foreign-born spouse might have pursued a temporary visa status, typically through an employment-based visa. But this, by its very nature, is only temporary and was not guaranteed. The couple would still be tasked with finding a permanent solution to stay together.
Another method for bi-national couples to remain together included the non-U.S. citizen arriving on a temporary visa, and then remaining in the U.S. out of status after his or her visa expired. This option added the extra stress that the family may be separated at any moment by deportation and the associated bar of re-entry into the U.S. The Obama Administration did, however, announce that, as part of the U.S. Department of Justice’s practice of exercising prosecutorial discretion in family immigration cases, some qualifying same-sex couples could be included in that particular definition of “family” if the couple met the following three criteria: “Same-sex relationships that rise to the level of ‘family relationships’ are long-term, same-sex relationships in which the individuals: (1) are each other’s sole domestic partner and intend to remain so indefinitely; (2) are not in a marital or other domestic relationship with anyone else, and typically maintain a common residence; and (3) share financial obligations and assets.” Although this particular pronouncement helped the situation, it still was not a permanent answer to the hardships many bi-national families faced.
A third option was for the couple to decide to live abroad. If the non-U.S. Citizen was unable to find a way to legally remain in the United States, the couple could have decided to depart the country. In some instances, some couples moved to a third country in which neither spouse was a citizen, while others moved to the home country of the foreign-born spouse. Unlike the United States, over 30 countries already granted immigration benefits to same-sex couples. In effect, DOMA led to the departure of U.S. Citizens in bi-national marriages, which has subsequently led to a growing diaspora of U.S. native-born individuals residing abroad because they are unable to experience full equality in their own country.
Post-DOMA, More Doors are Open for Citizens and Immigrants in Bi-National Relationships
The Supreme Court justices are unequivocally clear – as quotes from their majority opinion specify – about the intent of DOMA and its conflict with the United States Constitution, and the subsequent conflicts with the immigration system and family unity. Up until the Court’s DOMA decision, some Members of Congress, including Senator Patrick Leahy (D-Vermont), were considering an amendment to the Senate’s 2013 comprehensive immigration reform bill that would negate the effects of DOMA for immigration law through provisions from the proposed Uniting American Families Act. With the Court’s decision regarding DOMA, congressional leaders felt that was no longer necessary. Indeed, within the same day of the Supreme Court’s decision, Janet Napolitano, Secretary of the U.S. Department of Homeland Security – the federal agency that oversees immigration enforcement – issued the following statement:
I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits. I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.
Ultimately, with the Supreme Court’s historic decision decrying the unconstitutionality of DOMA, the United States takes a leap forward on its journey down the long arc that bends towards justice. Bi-national same-sex couples and their families can now choose love, family and country. While this decision positively impacts U.S. citizens, immigrants, and their families in many ways, Congress must pass comprehensive immigration reform in 2013 so that millions of people and families – documented, mixed-status, and undocumented – may find relief and equal justice under the law.
As with any progress for civil rights, history shows us there are always a recalcitrant few who wish to remain mired in the past, acting in ways that make progress a bit more difficult for the majority hoping and pushing for forward momentum. Nevertheless, the U.S. is now en route to joining the ranks of many other nations that have already granted marriage equality to all persons residing within their borders, including immigrants, at least at a national level. With this decision, the United States inches ever closer to becoming an example of the ideals the American people claim to cherish: freedom, equality, liberty, and justice for all.
 Including: Andorra, Argentina, Australia, Austria, Belgium, Brazil, Canada, Colombia, Croatia, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Ireland, Israel, Japan, Liechtenstein, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, and the United Kingdom.
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