Gay Immigrant Couples Await DOMA Clarification

By Julia at Legal Language
Posted on 06/20/2011
In Immigration, News

The Obama administration announced earlier this year that the Justice Department will no longer defend the Defense of Marriage Act, a move that looked promising for immigration equality rights groups and gay and lesbian immigrants.

Enacted in 1996 by the Clinton administration, the Defense of Marriage Act is a federal law that defines marriage as a union between a man and a woman. The Obama administration said the law violated constitutional equal protection principles because it treats gays and lesbians differently than heterosexual couples.

This new interpretation could have a huge impact on immigration law.

It is routine for American citizens in heterosexual relationships to obtain green cards for their foreign spouses. But the Defense of Marriage Act bars such status for immigrants in same-sex marriages, because it does not require states to recognize same-sex marriages — even those licensed in states that recognize gay marriage.

For gay couples married abroad, the US spouse cannot petition to bring the alien spouse to the US. For gay couples married in the US, the alien spouse is at risk of deportation if he or she has no other means to remain in the US. The act has been a focus of criticism by gay rights groups, who argue that the law is particularly discriminatory against immigrants.

Current State of Flux

Since the February announcement, the Obama administration has put a hold on immigration cases involving married gay couples.

Members of Congress have written to the attorney general and Department of Homeland Security asking that immigration officials hold off on rejecting visa petitions for same-sex couples and suspend deportations of married same-sex partners until the courts resolve whether the Defense of Marriage Act is constitutional.

The Department of Justice has responded that it will exercise discretion in individual cases, but it would continue to enforce the law. This episode has caused considerable confusion among immigration lawyers and gay rights activists.

State Recognition of Same-Sex Unions

As of May, states that issue licenses to same-sex couples include Massachusetts, Connecticut, Iowa, Vermont and New Hampshire, as well as the District of Columbia, according to the National Conference of State Legislatures.

Rhode Island, New York and Maryland recognize same-sex marriages from other states. Delaware, Hawaii, Illinois and New Jersey allow civil unions that provide state-level spousal rights to same-sex couples.

California, Oregon, Nevada and Washington provide nearly all state-level spousal rights to unmarried couples in domestic partnerships. Hawaii, Maine, District of Columbia and Wisconsin provide some level of spousal rights to unmarried couples in domestic partnerships.

Since the Defense of Marriage Act was enacted in 1996, many states have enacted legislation prohibiting same-sex marriages or recognition of same-sex marriages formed in other states. More than half of the states have passed language defining marriage between a man and woman in their state constitutions.

As states continue to pick a side in the gay marriage debate, gay immigrants await further clarification from the federal government on the status of their rights.

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