Monday, February 28, 2011

Same-Sex Binationals Encouraged to Seek Legal Advice Regarding DOMA Challenges

Guest post by Lavi Soloway, Stop the Deportations, the DOMA Project, immigration attorney with the law firm Masliah and Soloway

Since the Obama Administration instructed the Justice Department to stop defending the Defense of Marriage Act (DOMA) in court last week, we have been contacted by many same-sex binational couples who have sought to bring cases, file I-130 petitions or otherwise take up a DOMA-related challenge in the immigration context.

First Seek Expert Legal Advice
It is extremely important that no couple make any move without obtaining expert legal advice. There are significant, negative consequences, some potential and some assured, for any couple that starts down this path. There is a reason most of the couples in our Stop the Deportations, the DOMA Project were already in deportation proceedings when we filed I-130 petitions on their behalf (i.e., those who were already facing deportation had no risk of endangering their status further by making these arguments). Making a wrong move now could cause irreversible legal problems for a binational couple even if DOMA is struck down or repealed, and even if the Uniting American Families Act (UAFA) is passed into law. Every couple considering their next move should be aware of the negative consequences that will result if they press forward and should be strongly discouraged by competent attorneys from taking any cavalier or risky steps at this time.

While many couples have sat on the sidelines and decided not to marry out of an abundance of caution (often those couples could have married without fear of negative consequences, but again should be consulting attorneys for individualized legal analysis on the issue), the same cannot be said for filing petitions with immigration. Once petitions are filed, a legal process will have begun that in many cases will have permanent consequences. For that reason, we urge all members of the binational couple community to look at the new landscape, assess opportunities and the strategic advantages it presents and obtain individualized legal advice.

One of the most important things we can do now is support the repeal of DOMA in the House and Senate. When those bills are introduced by Sen. Feinstein and Rep. Nadler we should energetically support their passage.

Some More Explanation on What Is to Come
One point that is often overlooked regardless of whether a same-sex binational couple is married or unmarried, is that the demise of the Defense of Marriage Act (DOMA) will be of spectacular importance the next day because it will open up the door to fiancée visa petitions for those who are separated or exiled. (Stop the Deportations, the DOMA Project currently has one fiancée visa petition pending).

The day DOMA is no longer law, a lesbian American citizen living in Florida will be able to file a K-1 fiancée visa petition for her same-sex Kenyan partner as long as they note in the petition their intention to marry in a US jurisdiction that recognizes and performs same-sex marriages. It will not be particularly relevant where the parties live (except as a practical matter that it may require some logistical planning and travel expense).

Also, if DOMA is struck down by the US Supreme Court as violative of the US Constitution, laws and state constitutional amendments (the so-called mini-DOMAs) excluding same-sex couples from marriage in 45 states will also likely become a thing of the past. When DOMA is relegated to the dustbin of history, there will be an immediate and overwhelming victory for all binational couples. That doesn't mean we will not still have our work cut out for us, but we will forever change the landscape of this issue and effectively end the deportations, separations and exile of binational couples in almost all cases overnight.

Stop the Deportations, The DOMA Project is a pro bono project of our law firm (Masliah & Soloway). Our firm is run by two gay immigration lawyers with a combined 50+ years of experience in immigration law, specifically LGBT-focused immigration law. We are founders of Immigration Equality, we helped write Permanent Partners Immigration Act/Uniting American Families Act. Our involvement in the Marriage Equality movement is similarly of long duration reaching back to the early 1990s when Noemi Masliah was the Chair of the Board of Lambda Legal Defense and I worked with Lambda's attorney, Evan Wolfson, to campaign against DOMA during the period that the Hawaii marriage case was in full swing.

Our project is challenging DOMA in the immigration context with about 12 couples so far; these challenges are mostly in immigration court, though two cases are from outside the US (one married couple exiled in Canada, the second fiancée visa petition for a couple exiled in the UK). For more information visit our website or write to us at

1 comment:

RCANelson said...

This is really helpful information--and it's also great seeing your participation on the O4I blog, Lavi.
I am certain that many partners of Americans in the binational community count themselves among the undocumented. I'm curious if you have a sense of what a repeal of DOMA might mean for those couples.
Thanks again--