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Bi-national couples: What happens if Supreme Court rules against DOMA?

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One of the most highly anticipated rulings expected this month from the U.S. Supreme Court is on the federal Defense of Marriage Act, which defines marriage as being between a man and a woman. The high court is weighing the constitutionality of Section 3 of the 1996 law, which doesn't recognize same-sex marriages under federal law, even if they are recognized in some states.

This carries over to immigration. Because same-sex marriages aren't recognized for federal immigration purposes, gay and lesbian U.S. citizens cannot sponsor a foreign-born spouse for an immigrant visa, as heterosexual married partners can do.

In May, after an emotional debate, members of the Senate Judiciary Committee opted not to include an amendment to the Senate's immigration reform bill that would have granted visa sponsorship rights to same-sex couples. Now that the bill is on the Senate floor, a similar amendment was filed in recent days by Sen. Patrick Leahy, the Vermont Democrat who proposed the original same-sex marriage provision.

But at this point, it's more of a backup plan. If Section 3 of the law is struck down, it would essentially lift the legal barriers that same-sex bi-national couples face now.

How would this work in practice? Lavi Soloway is an immigration attorney and a founder of The DOMA Project, which advocates for bi-national same-sex couples. (He’s also a Canadian immigrant and naturalized U.S. citizen who is married to an American.) Here he explains the immigration implications of a ruling against DOMA — and what happens if the court rules the other way.

M-A: In immigration terms, what happens if the Supreme Court rules against the Defense of Marriage Act?

Soloway: If the court strikes down Section 3 of DOMA, the marriages of same-sex couples will be treated exactly the same way as all other marriages under federal law. For immigration purposes, that means that if you are married and your spouse is from another country, you file a petition and apply for a green card for your spouse. 

If your partner is abroad, you file a fiancé(e) visa petition, and you bring your partner to the United States for purpose of marrying and applying for a green card and settling and building a life together in this country, just as unmarried opposite-sex couples do in the same situation.

M-A: How soon would this happen?

Soloway: It would be immediate. Green card cases that we filed for some gay couples in anticipation of this ruling will be among the first approved, perhaps even on the day of the decision or very soon after, and we will see the tangible outcome immediately. We will see the arrivals of the first gay and lesbian fiancé(e)s on fiancé(e) visas. We will see green cards issued to spouses of gay and lesbian Americans within months.

A Supreme Court ruling striking down DOMA will have a tangible, real effect for thousands of families. It will bring back gay and lesbian Americans from overseas to be seated at Thanksgiving dinner tables next November. It will be real, and it will not only affect gay and lesbian Americans, but it will affect all Americans who for so many years have had their families town apart by DOMA.

M-A: Will any additional legislative or administrative action need to occur for these changes to take place?

Soloway: No. There cannot be any need for that. The Immigration and Nationality Act provides for various family unification laws to make sure that our families are kept together despite the fact that some of our family members have different citizenship. In the case of married couples, that is, American citizens with foreign spouses, our immigration law requires that they be in a valid marriage.

Marriages and spouses are not defined in the immigration law as being limited by gender. And so there is no possibility that any implementing legislation could be necessary, because the only law we need already exists, and it’s called the Immigration and Nationality Act. Not a single word, not a single punctuation mark — nothing needs to be changed in the INA for lesbian and gay couples to be treated the same way as opposite-sex couples are treated.

If a decision is handed down by the court that Section 3 of the Defense of Marriage Act is unenforceable because it is unconstitutional, at that very moment every executive branch agency that has been presented before it any issue involving a married same-sex couple would do whatever it would do for the same couple that was of the opposite sex. It is simply removing an extrinsic barrier.

This barrier has nothing to do with immigration law. DOMA never changed immigration law, and its removal won’t change immigration law. If the Defense of Marriage Act is removed, the immigration law simply works the same way for all families.

M-A: So how many bi-national couples are we talking about?

Soloway: It’s impossible to know how many of the bi-national couples are married, although it would be logical to assume that most lesbian and gay bi-national couples who want to marry will do so once the federal government recognizes those marriages for immigration purposes. I would say the best estimates we have are in the 30,000 to 40,000 couple range.

That number can’t account for thousands of gay and lesbian Americans who live outside the U.S. with their partners, and it can’t account for the couples that are separated. There is a large cohort of gay and lesbian Americans whose partners are living overseas who fly back and forth to see them, and whose relationships — of sometimes 5, 10, 20 years — involve constant international travel imposed upon them by their exclusion from our family-based (immigration) laws. This is a much-undercounted population.

Going forward, almost all of these couples will find their issues will be resolved and the occurrence of bi-national relationships among the LGBT population community will be as common as it is for opposite-sex couples. People will go abroad and study or join the Peace Corps or meet somebody in the U.S. from another country, and they will fall in love and get married, just like their opposite-sex counterparts.

M-A: Sen. Patrick Leahy has filed another amendment that would include same-sex couples in the Senate immigration reform bill. But if the Supreme Court rules against DOMA, there would not be a need for it, right?

Soloway: Exactly. He is preparing a Plan B. He hasn’t introduced it on the floor. He has filed it, and it can be introduced. It’s there...if the Supreme Court does the unthinkable and upholds the Defense of Marriage Act.

M-A: And what if that happens? Then what?

Soloway: If the Supreme Court upholds the Defense of Marriage Act, we are in a very weak position in terms of fighting now for inclusion in the immigration bill.

And we are in that weak position because it will then be July and the immigration bill will have already been in Congress for six months, where Democrats like Senator Chuck Schumer have twice affirmatively rejected inclusion for LGBT families, ostensibly in return for Republican support for the bill. So it will be very difficult, after a loss at the Court, to imagine achieving an LGBT inclusive immigration reform bill in the Senate. And when it moves to the House, it will be virtually impossible.

And so for lesbian and gay bi-national couples who have been really working for decades to try and find a legislative solution, to find support in Congress for a legislative solution that involves reforming immigration law, they will be back at square one with nothing. The thousands of gay and lesbian Americans who are living abroad in exile because they can't live in this country with their spouse or their partner, they will be indefinitely stuck abroad, and what was once ten years abroad may become a lifetime. For those couples who are separated, parents separated from their children, there will be no hope for them to be reunited. It will be a devastating outcome for lesbian and gay Americans with foreign partners.

Outside inclusion of LGBT families in immigration law reform, the next best hope for lesbian and gay bi-national couples would be repeal of DOMA by Congress. That is not likely to happen with Republicans controlling the House and blocking the Senate with the filibuster.

But a few years from now, repeal of the Defense of Marriage Act could happen. According to a recent Washington Post/ABC News poll, public support for federal recognition of same-sex marriages is at 63 percent.

That same poll showed majority support, by a somewhat smaller margin, for same-sex marriage in general.

The Supreme Court is also expected to rule soon on Proposition 8, California's ban on same-sex marriage. Rulings on one or both cases could come as early as Thursday, and are expected before the end of June.

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