FAQs on Immigration, DOMA and Same-Sex Binational Couples

by Heather Rose

The past few weeks have seen a fantastic increase in main stream media attention to our issues. Unfortunately that attention brings with it inevitable questions and confusion from people who have never had to think about immigration in the context of the Defense of Marriage Act and the LGBT community. Rather than argue with every troll on the internet I decided to create a FAQ that I can refer people to when presented with common questions. While each of these questions is answered from my personal perspective, I think it may be helpful for others.

If anything I say is unclear or incorrect, please feel free to comment. Notice any missing common questions? Please leave a comment and we'll address it.

[Please note: For the purposes of this FAQ I am referring to my partner as my spouse. We are currently unable to get married in the State of California but would do so if we could.]

1. Q: Same sex couples can now get married in a few states. Can't you just marry in a state where it's legal and then sponsor your spouse for immigration?

A: No. Unfortunately the Defense of Marriage Act prevents the federal government from recognizing my same sex spouse as my spouse. As an un-married couple in the eyes of the federal government we are not eligible.

In fact, for some immigrants the simple act of getting married to an American citizen/permanent resident may jeopardize their ability to stay in the country. Many immigrants are here under visas that require them to leave at the end of the visa period. Getting married would demonstrate intent to stay and could violate the terms of their visa.

2. Q: Why can't your spouse just apply for a green card or another visa? People do that all the time.

A: One common sense thing I would ask in response to this question: If legal immigration is so easy, why do we have so many undocumented immigrants? The requirements for legal immigration are stringent. Most people would find that if their families had to immigrate to the US under current immigration law, they would not be eligible. The rules so many of our ancestors historically used to immigrate legally have changed, and most Americans who have never had to deal with immigration issues simply have no idea how hard it is to become a legal alien in the United States.

Despite having lived and worked here for five years, my spouse is not eligible for a green card. She has only been successful in obtaining a limited work visa that requires her to leave for at least one year before she can come back under another visa. Her personal educational circumstances make it difficult for her to obtain any other kind of visa. We're working on it but by no means is it a sure thing that she will be able to get a new visa.

3. Q: So you can't sponsor your spouse and she has to leave. She's from a country with a nice standard of living. Would it be so bad if you moved and lived there?

A: Traveling the world has been a lifelong goal, so yes, the prospect of living in a foreign country isn't entirely unappealing. What IS unappealing is that I am being forced to make this decision. It is patently unfair that other people are able to sponsor their spouses and I am not. Leaving the country should be a decision that I make voluntarily when the timing is right. As things stand right now, this will present a major hardship to my family and will completely disrupt my career. I am willing to leave to stay with her, but I shouldn't HAVE to leave in order for us to stay together. I should be able to sponsor her like any other married US citizen/permanent resident can do.

4. Q: I'm straight and it took six months/a year for me to bring my spouse/fiance to the US. Why are you complaining about possibly having to leave for a year?

A: I'm complaining because unlike you I don't have the option of sponsoring my spouse. Once she leaves the country there is no sure path for her to re-enter. This situation imposes undue stress and financial hardship on me, my spouse and my family.

5. Q: Why do you frequently pose this as an immigration problem when the problem is DOMA?

A: There are two parts to our situation. The first part is that DOMA prevents me from sponsoring her as my spouse. The second part is that she is simply not eligible for most legal forms of immigration. And that, in my mind at least, makes it an immigration problem just as much as a problem of discrimination against LGBT. My spouse is a brilliant woman working at the top of her field. She pays taxes and contributes to our community. [She also pays into Social Security, which she may never be able to claim.]

She should be welcomed with open arms. Instead, come the end of her visa, she will have to leave. This country is in the habit of "throwing out" decent, good people and it needs to stop. Our relationship should certainly be recognized but she should also be able to stay completely on her own merits.

6. Q: If I was in your situation, I would ask her to just stay in the country illegally or try to arrange a marriage of convenience. Why aren't you doing that?

A: We have decided that neither course is right for us and we are uncomfortable with the risks involved. Other couples in similar situations are not nearly so lucky in being able to afford the expense of moving together to a new country. We will also be able live comfortably together in Europe, whereas others are faced with moving to countries where it is dangerous or impossible to live as a same-sex couple or LGBT person. Still others make decisions based on healthcare or family considerations. Every situation is unique and I really can't judge people who take an illegal course of action in order to stay together.