The Binational Plight - Discrimination in Immigration Law

The fate of GLBT immigrants and their families continues to be uncertain under U.S. immigration law. Unlike many other countries including Canada, France and Australia, the United States has no category for domestic partners under immigration law. The general rule is that foreign nationals married to American citizens of the same-sex cannot obtain legal permanent residency through their partnership.

Rachel M., a Jersey City resident who faces a costly commute to visit her partner in Toronto as frequently as possible, highlights the need to educate the public about such discrimination. "It is frustrating not to see any law protecting our families and civil rights. We're doing everything we can to make this issue visible, but we want to see a movement that supports all GLBT people - citizens or not."

Applying for legal permanent residency (green card) is a question of paperwork and patience when a citizen marries a foreign national in opposite-sex partnerships. "Once my partner's green card was issued, we could travel, live and work anywhere we wanted," says Rachel's sister who is married to a citizen from Mexico. "But we had no idea that same-sex couples suffer so many hardships because of antiquated immigration laws."

Foreign nationals tend to apply to legal permanent residency through family relationships with citizens and residents. If this is not an option, the other legal residency routes are through employer sponsorship (H-1/2Bs and L visas), education (I-20 student visa), or by winning an asylum case or a diversity visa lottery. "For the most part, employers don't want to deal with the difficult application process, so my partner is now getting his second degree to be able to stay with me but we are running out of money to pay for school," comments Steve S., a social worker whose partner is a student living in NJ.

In 1996, the Defense of Marriage Act (DOMA) created a federal definition of marriage as "a legal union between one man and one woman" and defined a spouse as "a person of the opposite sex who is a husband or a wife." Current US immigration law is governed entirely by federal law and so marriages that do not fit this description are declared ineligible for any federal benefits. As noted by the Lesbian and Gay Immigration Rights Task Force, the Department of Homeland Security will not recognize the marriage for immigration purposes unless DOMA is overturned. "The blatant way this country has inscribed discrimination into law is unacceptable," says Steve, "It's sad that I'll have to move out of my country or harbor an illegal alien if I am to be with my loved one."

Immigration Equality, a nationwide organization that addresses the widespread discriminatory impact of immigration laws on the lives of the GLBT population and people with HIV, emphasizes that some foreign nationals from countries where they have suffered or may suffer persecution because of their orientation, transgender identity, or HIV positive-status, may be able to obtain asylum in the United States. With the growing awareness of this option, however, the number of applicants is increasing and it becomes more difficult to obtain asylum (see www.immigrationequality.org).

Despite the bleak outlook, however, some progress has been made in the GLBT immigration realm. If a recently introduced bill, the Uniting American Families Act (UAFA) becomes law, U.S. citizens and legal permanent residents will be able to sponsor their same-sex partners for immigration benefits in basically the same way that opposite-sex partners do. The Uniting American Families Act is now pending in both the House and in the Senate. "All of us need to speak about the suffering caused by the discrimination under our current immigration law with our Congressperson and Senator. We need to make them aware of UAFA. It is a matter of our civil rights." Rachel M. continues working to change U.S. immigration laws while struggling to survive the binational plight.