More News from DHS for Married Couples
By Victoria Neilson on 03/28/2011 @ 06:30 PM
As the situation for our families continues to change rapidly, please see the additional FAQ: More on Marriage.
Our legal team is fielding 20 times as many calls and emails as usual, and we are updating and expanding these FAQ's very frequently. Our counsel is always free to the community thanks to the thousands of people who donate to the organization. Please keep in mind that the surge in demand means we cannot answer every email and phone call immediately.
What does this mean going forward?
It is still hard to know exactly what this means until USCIS issues its final guidance. Nonetheless there are some frequently asked questions which we can answer now.
What does “hold in abeyance” mean?
The legal term “hold in abeyance” means that USCIS will hold spousal green card applications that is, the applications will not be granted, but they won’t be denied either for a period of time. USCIS has done this before for widows of US citizens while litigation was pending and for HIV-positive green card applicants before regulations lifting the HIV ban were finalized. At this point, we are not certain whether the abeyance policy will last until there is a final outcome in the DOMA litigation, or whether the abeyance will be more short-term.
For additional information about abeyance and specific answers related to various situations, see our full FAQ.
Who would not benefit from an abeyance policy?
If USCIS holds green card applications in abeyance, couples living in exile, or foreign spouses who are stuck abroad would not benefit immediately. If the green card application is neither approved nor denied, spouses who would need the application approved to immigrate to the U.S. would not be able to do so. Moreover, filing an immigrant visa petition would show evidence of an intent to immigrate to the U.S. permanently and would likely make it more difficult to obtain a tourist visa or student visa to the U.S.
Also, since abeyance would only apply to spouses who could adjust status but for DOMA, if a foreign spouse entered the U.S. without inspection (EWI), that is by crossing the border without a visa, then he or she would not be eligible to apply for a green card from within the U.S. (adjust status) and could face a 3 year/10 year bar if he or she leaves the country. This is the same law that applies to opposite sex married couples.
Should we be marrying now?
One of the most significant advantages to applying for a green card based on a marriage to a U.S. citizen is that so long as the foreign spouse entered with a visa, even if he or she overstayed, his or her unlawful presence here is “forgiven” and the spouse can still proceed with a green card application from within the U.S.
Should we be filing I-130s now?
Please consult an attorney first, but as we explained in our prior FAQ, the scales in favor of marrying have definitely tipped in most cases.
Don’t do anything without speaking to a qualified immigration attorney. The answer to this question will depend on your individual situation and what the DHS final guidance says.
Would a civil union or domestic partnership be the equivalent of marriage for immigration purposes?
No, unfortunately, one of the reasons that LGBT rights organizations have been fighting so hard for full marriage rights is that there are many benefits that married couples receive that other couples do not; the Immigration and Nationality Act recognizes “spouses” as immediate relatives but not “domestic partners” or “partners in civil unions.”
Could you explain, briefly, how marriage-based petitions work?
For many LGBT people who have been shut out of the marriage-based immigration system, this whole concept is completely new. Briefly, a U.S. citizen (USC) or lawful permanent resident (LPR) may file an immigrant visa petition (I-130) on behalf of his or her spouse. Spouses of USCS may also, simultaneously or at a later date, file an application for lawful permanent residence (I-485) and an application for an employment authorization document (I-765). For opposite sex couples, USCIS schedules a “green card” interview within a few months of the filing of the I-485 to determine if the marriage is bona fide, that is to make sure that the couple married out of an intent to share their lives and not just to receive immigration benefits.
Couples who are married for fewer than two years receive a “conditional green card” if all goes well after the interview. The conditional green card is valid for two years, after which time the couples must apply to remove the condition, that is to prove that the marriage is still valid.
I still have questions ...
LPRs may also sponsor their foreign spouses, but the process is more complicated. These applications fall under the “family preference system” which means that the I-130 must be approved first and the foreign spouse must wait, generally for several years, before filing the I-485. If the LPR’s spouse is in the U.S. without lawful status, he or she may not apply for the green card from within the U.S. (at least not until the LPR spouse naturalizes.)
If you have further questions about your situation, please contact Immigration Equality’s legal department.
Progress and Questions: DOMA, DHS and Your Family
By Victoria Neilson on 03/28/2011 @ 11:55 AM
On Friday afternoon The Daily Beast reported – to much fanfare and celebration – that local USCIS offices in DC and Baltimore were holding spousal applications filed by lesbian and gay married couples, rather than denying those applications as has happened in the past.
LGBT Americans with partners from abroad have been rightly hopeful that change is on the horizon, following the Department of Justice’s February announcement that it believe the Defense of Marriage Act to be unconstitutional. Immigration Equality called on the Administration to halt the separation of our families – and hold spousal applications – while DOMA’s constitutionality is settled by the courts. We believe it’s the right thing to do. We hope the Administration agrees.
Friday’s press report, however, also included a cautionary tone from DHS headquarters in Washington. A national DHS spokesperson noted to The Daily Beast – and reiterated to other reports as well – that the Department continued to enforce DOMA.
Many of our families are, as a result, naturally wondering: What does this mean?
If, indeed, marriage-based applications are being held by DHS, it would signal an incredible step forward for lesbian and gay families. Given the statement by DHS headquarters, however, it is too early, as we write this update, to know if there has been a real change in policy, or if the statements by DHS field offices, as reported on Friday, were the result of a well-meaning staff person speaking on their own.
That’s why all of us at Immigration Equality are working – right now – to get clarification about what is actually happening. We know that everyone is in immediate need of an end to the separations our families have faced for years. And, we know we are getting closer every day. But, we want to be sure we have accurate information before couples take any action that could be contrary to your best interests.
For now, couples who have questions about this recent news should read our FAQs about marriage. And, because every case is unique, please contact our legal team with specific questions about your situation.
The great steps forward we’ve seen in recent weeks are evidence that our hard work is paying off. We’ll continue to fight, with all of you, until none of our families face separation or exile. Until then, however, please be sure to contact an attorney before taking any legal actions.
As soon as we learn more, we’ll post updated information here on the blog. In the meantime, keep working with us for change. We’re making progress, step by step, every single day.
March Madness at Immigration Equality
By Stephanie Harig on 03/24/2011 @ 03:40 PM
You may not care if Tennessee and UConn finally meet up in the Final Four (and we’re talking women’s basketball here — I am officially boycotting the men’s tournament, but that’s a different story), but you have to admit that the spirit of March Madness is everywhere. And even though March is almost over, the fact that the championship game is in early April means we’ve all got (at least!) a few more weeks of this madness.
Immigration Equality has not been immune from the infectious madness of March (and early April). As you probably know, we’re working on a DOMA challenge in the courts and calling on the Obama Administration to stop deporting married, binational LGBT couples. But we are also in the final stages before reintroduction of the Uniting American Families Act (UAFA) in both the House and Senate. Getting relief for binational families is a priority, and Immigration Equality is working on all fronts to make that happen.
Now, in an ideal world, more people would care about the women’s NCAA tournament AND policymakers would just do the right thing: pass UAFA and extend to LGBT citizens and residents of the U.S. the right to sponsor their partners for immigration. But the political world is much more complicated – even more complicated than an NCAA bracket! Policymakers need to be convinced to do the right thing. And that means they need to hear from you.
Luckily, constituents such as yourself have more say in the democratic process than just trying to predict how far Green Bay will actually go in the tournament or whether UAFA will be passed. Our elected officials – Representatives, Senators, and the President – are supposed to be responsive to us and our needs. But they can’t do that effectively if they don’t know what your needs are.
So if you want your Senators and Representatives to support UAFA, tell them! Immigration Equality has made contacting your Members of Congress really easy! Just click here to tell Congress to support LGBT families! (See? Much easier than predicting if Baylor has enough talent around Brittney Griner to vie for the title!)
One last thing though: letters to Members of Congress are much more effective if you personalize them. So take a moment and add a personal touch to the language that Immigration Equality has provided. And once you’ve sent your own letter, tell a friend to do the same!
As March winds down, and both the NCAA tournament and the drive toward UAFA reintroduction heat up, Members of Congress need to hear from you. Neither Maya Moore nor Immigration Equality can do it on our own – we need your support and your advocacy to make sure all of UAFA’s co-sponsors return and then some!
So what are you waiting for? Click here to send a letter of support for UAFA to your Member of Congress.
We can’t win this without you!
Stephanie Harig is one of our public policy interns. She's a 2009 graduate of Miami University in Oxford, Ohio and is pursuing a masters in public policy and women's studies at George Washington University. She's originally from Ohio and likes sports metaphors.
Additional Concerns for LGBT Binational Couples in Japan
By Christopher Edwards on 03/18/2011 @ 04:35 PM
News and images of the destruction and uncertainty left by March 11 earthquake and tsunami near Sendai, Japan continues to pour in. Fridae reports on the situation for Japanese LGBT and PLHIVA (people living with HIV/AIDS). Writing on the "specific challenges for the LGBT community", Fridae notes specifically the challenge faced by binational couples in Japan:
During crisis times such as this, LGBT people may face additional difficulties. Azusa, who’s the co-founder and editor of GayJapanNews, says LGBT people especially those living at evacuation centres may have to keep their relationships under wraps and not be able to draw on the support of his/her same-sex partner despite the trauma they are going through. Additionally, a LGBT Japanese national who is in a relationship with a foreign partner who is evacuated may have no recourse to be reunited if their relationship is not recognised by immigration authorities overseas.
The entire piece, like much of the news from Japan, is a mix of heartbreaking and hopeful. Several of us have close ties to Japan, including family and family of loved ones. Regardless of specifics, all of Immigration Equality have our thoughts and prayers with the Japanese right now.
400 (And Counting) Faith Leaders for UAFA
By Steve Ralls on 03/18/2011 @ 11:51 AM
In an overwhelming show of support for lesbian, gay, bisexual and transgender Americans with partners from abroad, a coalition of more than 400 faith leaders have called on Congress to pass the Uniting American Families Act (UAFA). The letter, first reported by Sarah Posner at Religion Dispatches, comes as Congressional leaders prepare to re-introduce UAFA, which would allow LGBT Americans to sponsor their partners for residency in the United States. Under current immigration law, tens of thousands of families face separation and exile because of discriminatory immigration laws.
The letter, released as part of the Faith Coalition for UAFA assembled by Immigration Equality, includes signatories from virtually every denomination, including Catholic, Episcopalian, Jewish, Methodist and Unitarian clergy and leaders, as well others. The statement is endorsed by faith leaders in red states and blue, and includes individuals from congregations in nearly every region of the country.
"Our diverse faith traditions," the coalition writes, "teach us to welcome and care for our neighbors with love and compassion. Of the many great injustices in this broken immigration system, family separation is one of the most egregiou s .... Immigration policies should make expeditious family reunification a top priority and should include all families as part of that foundation. For us, this is a clear matter of simple justice."
"We endorse the Uniting American Families Act," they conclude, "which upholds the fundamental value of keeping families together."
The coalition's letter follows endorsement of UAFA from groups such as the American Jewish Committee, Call to Action, Methodist Federation for Social Action, the North American Old Catholic Church and the United Methodist Church General Board of Church and Society, among others.
Save the Date: Upcoming Events Near You
By Staff on 03/13/2011 @ 04:41 PM
Spring has sprung! Following our record-setting 2010 asylum record, we're putting together a DOMA challenge on behalf of binational couples and calling on the DHS to stop denying green cards to binational spouses.
So we at Immigration Equality and the Action Fund keep spreading the word and working to raise financial support for our work. We're participating in events from coast to coast and planning some our own. Check and save the dates for these upcoming events:
March 16 / Everywhere
LGBT Immigration & Asylum Law National Conference Call
Learn more and find RSVP info
RESCHEDULED: March 23 / Washington, DC
Due to a scheduling confilict this event moved to March 23 from March 16: DC Log Cabin Republicans featuring Immigration Equality's Julie Kruse
Learn more and find RSVP info
CANCELLED: March 23 / New York, NY
Due to a scheduling conflict Women at the Helm: Shaping the LGBT Agenda has been cancelled. It will be rescheduled at a later date.
Meet and hear from our executive director Rachel B. Tiven at NYC's LGBT Center, RSVP at Facebook.
April 28 / New York, NY
Safe Haven Host Committee Party
To attend, join the Host Committee
May 31 / New York, NY
Safe Haven Awards
Save the Date
Late Jun / Los Angeles, CA
Immigrant Art Expo
Save the Date
We hope to see you at one of the events above. And keep your eye here at the Voices for Equality blog or our events section for even more events coming in late spring and summer.
LGBT Immigration & Asylum Seekers: A Call with The LGBT Bar
By Steve Ralls on 03/10/2011 @ 04:29 PM
For decades, immigrants have requested asylum by the United States from their home countries due to political strife, economic hardship, or social injustice. With regards to LGBT individuals in many communities abroad it is mortally dangerous to be open with their lifestyle therefore political asylum is critical.
On Wednesday, March 16, the National LGBT Bar Association, in partnership with Immigration Equality, will host a national call-in to discuss developments in the field of LGBT immigration and asylum seekers. It will be led by Justin Connor, with speakers Victoria Neilson, Legal Director at Immigration Equality, Scott Titshaw, Assistant Professor of Law at Mercer University, and Chad Ellsworth, Associate at Fragomen, Del Rey, Bernsen & Loewy, LLP.
LGBT Immigration & Asylum Seekers
Wednesday, March 16, 2011 | 5:00pm EST
Please RSVP to receive dial-in instructions.
This call will be approximately one hour in length and is open to the public. You may submit questions before and during the call to Immigration@LGBTbar.org.
Description: United States asylum law is derived from international agreements written after World War II. With the large influx of migrants from other countries, the U.S. wrote an internationally universal standard that would outline who would be considered as a refugee. Since then, however, courts have needed to expand such definition and circumstances that would consider one who might need asylum. In 1994, Attorney General Janet Reno declared the Matter of Toboso-Alfonso case as precedent, which was pivotal for helping to categorize homosexual men and women as a “particular social group”—which, as explained in the Refugee Act of 1980, is a possible definition for a refugee into the United States. Now in the U.S., as it pertains to the 36,000 binational same-sex marriages, asylum law is a very important issue when it comes to the Federal government recognizing LGBT unions and granting protection.
Moderator: Justin Connor is in-house counsel to a telecommunications company based in McLean, Virginia, where he handles transactional/corporate law, dispute resolution, regulatory, M&A and corporate governance issues. Justin also worked in private practice in Washington and Dubai, and practiced for several years at the Federal Communications Commission, before he won a Fulbright fellowship to Lebanon in 2004. From a client’s perspective, Justin has learned first-hand about LGBT immigration and asylum law, because his partner is Syrian and recently won his own asylum case in the United States.
Speakers: Victoria Neilson is the Legal Director at Immigration Equality. She runs the organization's pro bono asylum project and provides technical assistance and mentoring on LGBT and HIV immigration issues to attorneys around the country. She is the primary author of The LGBT/HIV Asylum Manual, a comprehensive guide for attorneys. Victoria is member of the American Immigration Lawyers Association and former chair of the New York City Bar Association’s Committee on AIDS. She was a 2009 recipient of the LGBT Law Association of Greater New York (Le-Gal) Community Vision award.
Professor Scott Titshaw has a scholarship at Mercer University Walter F. George School of Law that focuses on immigration, comparative law and issues concerning sexual minorities. He teaches Property, Real Estate Transactions, International Business Transactions and Sexuality and the Law. Professor Titshaw was an adjunct professor at the University of Georgia School of Law and practiced immigration and transactional law with Arnall Golden Gregory LLP in Atlanta. He clerked with U.S. District Court Judge Adrian Duplantier in New Orleans, and served as a legal translator with Germany’s Federal Constitutional Court (Bundesverfassungsgericht) in Karlsruhe, Germany.
Chad Ellsworth is an associate with Fragomen, Del Rey, Bernsen and Loewy, LLP. His practice focuses on the representation of individual and business clients on a wide variety of corporate immigration and related employment matters. Chad has advised human resource personnel, managers, executives and professionals and multinational corporations on immigration matters and prepared their nonimmigrant and immigrant visa petitions and applications. He has experience writing policies for, and training human resource employees, recruiters and managers on immigration laws and procedures including Form I-9, Social Security Administration’s “No-Match” Letter, Employment Standards Administration Wage and Hour Division Labor Condition Application investigations and related immigration workforce enforcement and compliance issues. He is a member of the firm’s Corporate Compliance Group. Chad also handles LGBT asylum cases on a pro bono basis.
Immigration Equality Calls on DHS to Stop Denying Green Cards for LGBT Spouses
By Steve Ralls on 03/09/2011 @ 10:51 AM
In an interview published last night, Immigration Equality executive director Rachel B. Tiven calls on the Department of Homeland Security to stop denying green card applications filed by spouses of LGBT Americans.
“It is imperative that the administration stop breaking up families based on a law that it says is unconstitutional,” Tiven told reporter Andrew Harmon. “We’re calling on the Department of Homeland Security to stop denying green card applications for the spouses of American citizens.”
Representatives Jerrold Nadler (D-NY) and Zoe Lofgren (D-CA) – both important leaders on LGBT and immigration issues in Congress – joined Immigration Equality’s call for a halt to deportations involving legally married spouses. New York Senator Kirsten Gillibrand also weighed in, telling reporters that, ““The recent news of deportations involving legally married gay and lesbian binational couples is heartbreaking.”
Tiven's call for a halt to green card denials follows the Justice Department's announcement that it believes Section 3 of the federal Defense of Marriage Act (DOMA) - which prohibits extending federal rights, including immigration benefits, to married gay couples - is unconstitutional. Last week, Immigration Equality's legal team announced they are preparing a federal court case, on behalf of married lesbian and gay couples, specifically challenging DOMA.
To read the full interview, click here.
Valentine's Events & House Parties Raise Critical Funds & Awareness
By Win Chesson on 03/09/2011 @ 10:43 AM
Thanks to the hard work and dedication of gracious house party hosts, Immigration Equality and the Action Fund gained hundreds of new supporters, reached key members of Congress, and raised over $15,000. Party hosts invited their own Congressional representatives to attend, underscoring the urgent need to pass UAFA.
Some parties also screened Eat Pray Love author Elizabeth Gilbert’s video clip on binational families, and received a live update with Q&A from Immigration Equality's staff.
Immigration Equality would like to extend its deepest gratitude to all of our fabulous hosts:
Brooklyn, NY: Barrak Alzaid
Los Angeles, CA: Xiaofeng "Charlie" Gu
New York, NY: Team NY Aquatics “One Hour Swim”
New York, NY: Metropolitan Tennis Group with Out of Bounds NY
San Diego, CA: Vanessa Dubois
San Francisco, CA: Aaron Chapman & Juan Carlos Duarte
Washington, DC: Timur Hicylmaz & Luke Johnson
Upcoming: Sydney, Australia! Fort Lauderdale, Florida!
If you are interested in hosting your own Immigration Equality fundraiser, please contact Win at wchesson (at) immigrationequality.org to receive a house party toolkit.
In the Courts: A Historic Announcement from Immigration Equality
By Rachel Tiven on 03/03/2011 @ 05:05 PM
I wanted you to be among the first to know. Our legal team is planning to file an historic lawsuit on behalf of our families.
Following the Obama Administration’s recent announcement that it believes the Defense of Marriage Act is unconstitutional — and its refusal to defend that law in court — we are preparing to challenge DOMA in federal court, on behalf of families who face separation because of discriminatory immigration laws.
For the first time, the U.S. government has declared that Section 3 of DOMA, which prohibits married LGBT Americans from sponsoring their spouse, is unconstitutional. The end of that law will mean a new beginning for LGBT Americans married to non-citizens. Immigration Equality is seizing this tremendous new opportunity and is bringing litigation to end the discrimination those families face.
Soon, we’ll be announcing the families who will be part of our suit, and the prestigious pro bono partners who will help us fight in court. We are assembling the very best team to wage this battle and to ensure we have the best possible chance at dismantling DOMA. The Justice Department has taken a major step forward in refusing to defend the law. We intend to cross the finish line and end it once and for all.
All of us at Immigration Equality will continue to fight for our families in Congress, too.
While the end of DOMA would help many families, passage of the Uniting American Families Act (UAFA) remains critically important as well. Many states continue to discriminate against LGBT couples through state-level DOMAs. Families in those states still need a legislative victory so they donâ€™t face separation or exile, too. While our work will expand as part of this new court challenge, our commitment to UAFA — and to ending discrimination for all families as quickly as possible — will not waiver.
This is an immensely significant moment for LGBT families, and Immigration Equality is uniquely positioned to take on this fight. With your help, we will succeed and keep our families together.
Look for more news about our lawsuit soon.
For information on how DOMA might impact your family, please visit our FAQ page, online here. And, if you are thinking of getting married, or are already married and thinking of filing papers with Immigration, or have already done so, please contact our legal department. Then, to make a gift in support of our litigation challenging DOMA, visit the Immigration Equality website.
FAQs: DOMA, Marriage, and Our Families
By Victoria Neilson on 02/28/2011 @ 12:08 PM
Our legal team is fielding 20 times as many calls and emails as usual, and we are updating and expanding these FAQ's very frequently. Our counsel is always free to the community thanks to the thousands of people who donate to the organization. Please keep in mind that the surge in demand means we cannot answer every email and phone call immediately.
Note: If you are thinking of getting married, or are already married and thinking of filing papers with Immigration, or have already done so, please contact our legal department. We can give you individualized information that is not possible in a general FAQ.
Q: What did the Department of Justice (DOJ) do last week in the DOMA litigation?
This is terrific news. The Justice Department took a major step forward last week when it announced that it sees DOMA, the so-called “Defense of Marriage Act,” as discriminatory and unconstitutional. This is the first time the DOJ (and the president) have ever taken a public position against DOMA. By taking this position, many LGBT rights activists and legal scholars feel that the DOMA litigation will be more likely to succeed. As momentous as this move was, however, the Justice Department made clear that for now, DOMA is still in force and will continue to bar federal government agencies – including the ones that control immigration – from recognizing valid marriages.
Q: If the answer is “not yet,” then when?
DOMA won’t be fully dead until it is either repealed by a majority vote of Congress and signed by the President, or until the U.S. Supreme Court finds it unconstitutional. Legislation to repeal DOMA was introduced in the last session of Congress, and several members of Congress have announced their intention to introduce it in the current Congress very soon. DOMA has several sections, but Section 3, the part at issue recently which defines marriage as only between a man and a woman for the purpose of federal benefits, is the one most relevant to binational couples and the one on which the Supreme Court is most likely to rule in the next few years.
Q: What happens to the DOMA challenges that are already in court?
For more than a year, we have been watching closely to see what happens in Gill vs. Office of Personnel Management, a case that Gay and Lesbian Advocates and Defenders (GLAD) brought on behalf of several married Massachusetts couples. In this case GLAD argues that the federal government has to recognize those couples as validly married. GLAD won the case at the trial court and is in the process of defending its victory in the First Circuit Court of Appeals. That litigation is directly affected by the Justice Department’s announcement that it will no longer defend DOMA in Court, and it is unclear who will step in to take their place as the opposing party.
Q: But what if no one defended DOMA in Gill? Then what would happen?
In that unlikely scenario, then, yes, there would be a final decision for residents of Massachusetts, and they would be eligible for federal marriage benefits, including immigration. It’s not clear whether couples that marry in Massachusetts but live elsewhere would be able to apply for immigration benefits.
Q: Can couples who live and marry in Massachusetts get green cards now based on the lower court ruling?
No. Although the Justice Department generally defends lawsuits when the constitutionality of a law is challenged, if they refuse to do so then someone else, either a Member of Congress or a private interest group, may be able to step in and defend the law instead. This is what happened in the Perry case in California when the California government refused to defend Proposition 8. At this point we are all waiting to see who will step in to defend in the Gill appeal, but it is extremely unlikely that no one will do so.
Q: My partner lives abroad and can’t get a visa here, can I now file a fiancé/fiancée visa for him?
No. Until there is a final decision in the DOMA litigation or a repeal of DOMA by the legislature, any marriage-based immigration application will be denied. Filing a fiancé/ee visa will reinforce the fact that your partner has “immigrant intent” and make it even less likely that he could get a short-term visa in the future.
Q: We’re already married; should we apply for a green card?
The DOJ memo states that the U.S. government will continue to enforce DOMA until there is a final judicial decision or until Congress changes the law. That means that, at least for now, if you file a marriage-based green card application, it will still be denied and if your foreign born partner is out of status he or she will probably be put into deportation proceedings.
Q: We’re not married, but should we get married now just to be ready?
Maybe. Same sex couples need to weigh the benefits of getting married against the risks. If your partner has a tourist visa or student visa, he or she may be found to have “immigrant intent” if Immigration learns that he or she is married. If you are concerned about “immigrant intent” issues you should speak with an attorney before marrying.
On the other hand, if at some future point marriage is recognized for immigration purposes, there may be advantages to being married longer. For example, in a marriage-based petition for lawful permanent residence, a foreign national can get a green card with just one “green card” interview if she has been married for at least two years prior to filing. With this new development in the DOMA litigation, it is more important than ever that you consult a qualified immigration attorney about your individual situation.
Please speak with someone in our legal department before getting married.
Q: If DOMA is struck down by the U.S. Supreme Court, then will the immigration issue be solved for same sex binational couples?
For couples who live in the states with full marriage recognition (currently Massachusetts, Vermont, New Hampshire, Connecticut, Iowa, and Washington DC) yes – once there is a final ruling on DOMA, their marriages should be accepted for immigration purposes. For couples who reside in states that don’t have marriage recognition, the immediate effect of the ruling would depend on what the U.S. Supreme Court decision says. If the Court issues a narrow ruling finding that same sex couples in a state that recognizes their marriage must be allowed to receive federal benefits, there may be no immediate solution for people who live in the majority of states where there is no state-recognized marriage. However, couples in those states could relocate to the states which do have favorable marriage laws. If the Supreme Court issued a sweeping ruling barring marriage discrimination on the basis of sexual orientation, then states that currently forbid same sex marriage might not be able to do so in the future.
Q: How does DOMA affect a marriage performed abroad?
In general, a marriage that is validly entered into, whether abroad or in the U.S. is valid for all purposes. DOMA is the big exception to this rule. In immigration it gets a little more complicated. Immigration generally performs a three part test:
- Was the marriage valid where celebrated?
- Is there any strong public policy ground against recognizing the marriage either in the state where the couple lives or intends to live or at the federal level?
- Is it a bona fide marriage?
So, whether a marriage has taken place in Canada or Massachusetts, the answer to the first question would be yes. It's the answer to the second question which currently prevents people from getting immigration benefits.
Q: If we’re getting so much closer to ending DOMA, is it still important to push the Uniting American Families Act (UAFA)?
Absolutely. Much of the LGBT rights movement, like other civil rights movements, has involved advances followed by setbacks. Today, it looks like the tide has turned against DOMA, but, unfortunately, no one can guess what will happen in a court case that may not ultimately be decided for several years. Binational couples suffer every day, and it would be dangerous to put all of our eggs into one basket when the result is so uncertain. We must continue to fight for UAFA to ensure that couples in every state can stay together, and we must continue to fight in case the DOMA litigation stalls.
Q: Does any of this DOMA talk have any effect on couples where one spouse is transgender?
Yes, in many marriage-based green card applications where one spouse is transgender, the transgender spouse has to submit evidence about his or her medical transition as well as documents about legal recognition of his or her gender change, and these cases generally involve a long battle with Immigration. If DOMA were no longer in effect, it would not matter to Immigration whether marriages were considered opposite sex or same sex so it would not be necessary to submit this kind of proof of gender.
DOMA, The Justice Department and Binational Couples
By Steve Ralls on 02/23/2011 @ 01:59 PM
Today's announcement by the Department of Justice, regarding the Obama administration's decision not to defend Section 3 of the federal Defense of Marriage Act (DOMA) in court, is currently being reviewed by Immigration Equality's legal team.
We know that many of you have questions about the impact of today's announcement on binational families, and our attorneys are working to get the answers you need as quickly as possible.
Please stay tuned, here at the Immigration Equality blog, for more information as that becomes available.
UPDATE: Our allies at Gay & Lesbian Advocates and Defenders (GLAD) - who are among the most renowned legal minds on DOMA issues - released a statement earlier today noting that, "At this time, it is unclear what effect these developments will have" on DOMA lawsuits, but that, "The administration will continue to enforce DOMA, and it will remain in effect until the law is either repealed by Congress or finally declared unconstitutional in court."
Because of that uncertainty about the ultimate impact of today's announcement, it would be premature to draw any concrete conclusions about what the future holds, regarding DOMA challenges, for binational families as well. It is important, however, that couples be aware that DOMA will continue to be implemented until a final conclusion is reached via Congress or the courts.
In the interim, Immigration Equality's legal team will continue to confer with legal experts . . . our network of attorneys . . . and our in-house legal staff . . . to determine what legal "next steps" may be appropriate for our families.
In the meantime, couples with specific questions may contact our legal team via our web form, online here.
Give A Damn Campaign Releases Immigration PSA
By Steve Ralls on 02/22/2011 @ 12:46 PM
Our friends at The Give A Damn Campaign - headed up by the legendary Cyndi Lauper - have released this new public service announcement featuring Immigration Equality supporter Judy Rickard and her British partner, Karin.
For more information on the campaign, which is highlighting immigration-related issues all month, click here.
John, Joan - Or, A Letter of Difference
By Guest on 02/18/2011 @ 11:25 AM
This guest blog is from Nora, a Minnesota resident who is also the American half of a binational couple.
What could change that much with a difference in one letter of the alphabet? Nothing less than my whole world.
For my first 40 years I was straight, married to John, an employee, mother, daughter, sister and friend.
At 51 I've come out as gay, have a partner - Joan - and am still an employee, mother,daughter, sister and friend.The essence of who I am remains the same, yet my government strenuously disagrees . . . especially when it involves the subject of same sex binational couples and immigration.
Our democracy that is rock solid concerning liberty and justice for "all" does NOT extend to me, at this moment, simply because I chose to be true to myself and picked honesty over denying my authentic being. I cannot sponsor my partner because she is a woman. Realize that there would be no problem if I was in a relationship with a man. Nothing else has changed about me except whom I love.
It's really not more complicated than that. My government deems it necessary to discriminate against me solely on the basis of whom I love. Yes ideed, after the national anthem is played and the reciting of the pledge of allegiance is finished, there continues to be glaring exceptions in the land of the free and home of the brave.
Pertaining to same sex partner immigration rights, we need not only a change of law,but a change of heart. Immigration laws are tough to understand even if you're involved with them on a regular basis, but trying to explain my particular situation is also challenging because either people don't know there's a problem with same sex sponsorship of partners or they're unaware that it's a federal law - and not a state law - that dictates what I am legally allowed to do.
I've tried appealing to your head, your heart, and sense of fair play. I'm asking you one human being to another, look inside where compassion resides and reflect on the principle of equality for which America stands. I trust that if the American people truly knew the reality about this injustice they would make it right. No less than 19 countries welcome binational couples. Even in North America - Canada to the north and Mexico to the south - many of our neighbors already recognize same sex couples as equal under the law.
Why can't we? It's 2011 for goodness sake!
Please help me change this travesty. Our country (yours and mine) isn't so fragile that my equality could ever endanger it.
I only wish to contribute to my country, cherish my country and LIVE in my country, with my loved ones.
Guest Blog: Valentine's Day Apart
By Judy Rickard on 02/14/2011 @ 10:13 AM
Judy Rickard, the American half of a binational couple currently separated by discriminatory immigration laws, wrote this Valentine's blog for her partner, Karin. Judy and Karin have also written 'Torn Apart,' a new book chronicling the experiences of LGBT binational families. To order a copy - and support Immigration Equality's work - click here.
One more day we can't be together - where we want to be - but this is Valentine's Day, the day people focus on love and tender thoughts and the day that we consider our anniversary, though we can't marry because America will think you will want to be here with me and overstay your visa.
What a mess - if we had known in 2005 how things would turn out would we have moved forward to be together? I know the answer is yes, but we never knew then what we have learned in the trenches being a same-sex binational couple.
We are a political category now - a same-sex binational couple. And we are fighting for our lives. Can you believe that!
All I wanted to do as we got to know each other was to make sure each date meant I should free myself from fear and open my heart to accept the chance at love again with you…and I did. And I do.
But we faced odds even we didn't realize. Stories of others made my heart sick and made me feel guilty that our problem wasn't as bad as others. Some people have been apart for years. Others have had to move away to be together. Others face deportation. Others had to break up. Others face being separated from their children if they are deported - or relocation to a country none of them know.
How sad on a day that should be only happy. How sad I am having my Valentine's Day date with you on Skype. How sad that we count our blessings together in weeks and months before the visa axe falls again.
I am so glad we have found powerful allies to help us - and they are - but Congressman Mike Honda . . . and Congressman Jerrold Nadler . . . and Senator Patrick Leahy . . . and Senator Chuck Schumer . . . and Senator Robert J. Menendez . . . and author/lobbyist Elizabeth Gilbert . . . and Immigration Equality . . . and Out4Immigration . . . and Love Exiles Foundation can only do so much.
If I could be in President Obama's office right now I would plead with him so we could be together and end this problem for all of us.
If I could be in Secretary Napolitano's office right now I would plead with her, too, so we could be together and end this problem for all of us.
Until we are together physically, honey, I am hugging you virtually and wishing you the LAST Valentine's Day apart from me. We will do what we need to do to stay together, I promise. I have been doing all I can to help fix the problem and I will not stop. You have my word on that…
I love you now more than ever, Karin!
Your beloved Judy.
The Washington Post Reports on Immigration Equality's Asylum Work
By Steve Ralls on 02/12/2011 @ 09:18 AM
This morning's 'Washington Post' includes coverage of Immigration Equality's work on behalf of LGBT Jamaicans fleeing persecution in their home country.
From the time he was in grade school in his native Jamaica, Andrae Bent was the target of taunts and attacks.
A classmate once stabbed him near his eye with a pencil for being effeminate. Another time, a man pulled a knife on him and asked if he was "one of them," Bent said, meaning homosexual. Fearing for his life, Bent denied his homosexuality.
"I was called faggot, gay, batty man, chichi man," he said. "This would be from classmates, from people on the streets when I was walking home. Wherever I went in Jamaica, it was a nightmare."
Five months ago, Bent, now 24, won asylum in the United States on the grounds that he had credible fear of persecution as a gay man if he were to go back to Jamaica. He joined what has become a small wave of gay Jamaicans fleeing homophobia in the Caribbean nation.
Despite its image as a laid-back island paradise for American tourists, Jamaica still criminalizes sodomy and has long been regarded by human rights activists as virulently anti-gay.
The federal government doesn't track how many people are granted asylum on the basis of homophobia or what countries they are from. But of the 92 gays and lesbians who won asylum in 2010 with the help of Immigration Equality, an immigrant gay-rights group, 28 were from Jamaica - meaning that nearly a third were from a single country ranked 138th in world population.
Advocacy groups say they also regularly see asylum seekers from other English-speaking Caribbean countries, such as Barbados and St. Lucia.
"The Caribbean is the part of the world where we see the highest number of cases," said Victoria Neilson, legal director at Immigration Equality, which estimates that it handles about half of all successful asylum cases brought on behalf of gay and lesbian foreigners.
Part of the reason, she said, is that those seeking asylum have to be in the United States when they apply, a formidable hurdle for people from more distant countries such as Uganda. Homophobia in Uganda is so virulent that the parliament is considering a bill to execute gays and a prominent gay activist was slain two weeks ago.
But while many Americans are aware of homophobia in Africa, fewer are aware of the issue in the Caribbean, Neilsen said. "There is a great deal of violence, and in many Caribbean countries there are laws on the books that criminalize consensual sodomy, which makes it difficult for people to report violence to the police."
To read the complete coverage in this morning's 'Post,' click here.
By Rachel Tiven on 02/11/2011 @ 01:14 PM
The numbers are amazing.
One of every 200 people granted asylum in the U.S. last year was represented by Immigration Equality. That is staggering – and it shows that an organization with a small legal staff and a dedicated corps of law firms working pro bono can change the lives of lesbian, gay, bisexual, transgender and HIV-positive people fleeing violent persecution.
We won 102 cases in 2010, for people from all over the world. We won refuge for LGBT and HIV-positive people from Ghana, Uzbekistan, and Peru, to name a few, and overwhelmingly from Jamaica.
American immigration law isn’t fair, as LGBT families know all too well. But the chance for freedom from fear is something this country can provide to some of our brothers and sisters. Immigration Equality is the national expert on LGBT asylum, and over the past five years we have represented more than 500 people fleeing persecution.
But that isn’t all.
This morning, our policy team was on Capitol Hill with one of our binational spokescouples, meeting with key lawmakers and shoring up support for the Uniting American Families Act (UAFA). We’re asking lawmakers, including freshmen members of the new Congress, to ensure our families are not forgotten.
Our Capitol Hill visit coincides with news reports that Senate leaders are discussing how to move immigration reform forward in the new Congress. As we told reporters earlier this week, Immigration Equality will be “working very hard and watching very closely” to ensure that legislation “is inclusive of the Uniting American Families Act.”
Now, we need you to work with us, too.
If you haven’t already done so, please log onto the Immigration Equality Action Fund and ask your Member of Congress to support UAFA. With so many new lawmakers in Washington, it is important that we build grassroots support to educate each one about the discrimination our families face.
2010 was a record-setting year. Together, we can make sure we begin 2011 with the resources we need to keep winning.
P.S. Please consider making a donation in support of our work. For every asylee we win safe haven for, another call comes to our offices, seeking help. For every couple we’re able to bring to Capitol Hill, there are so many others who will share their stories in the weeks and months ahead. We can only do that with your continued support.
We Cannot Just Stand Alone: Lessons from the DADT Repeal Campaign
By Steve Ralls on 02/08/2011 @ 01:10 PM
As someone who worked for nearly a decade on the campaign to repeal the “Don’t Ask, Don’t Tell” ban on lesbian, gay and bisexual service members, I’m always amazed at the misinformation and misperceptions that have surrounded the strategy to win open service in the armed forces. One of the most pervasive, and untrue, is that repealing the military’s ban happened only when a stand-alone bill was introduced in Congress.
In fact, the history and strategy behind repeal is much more complex — and entirely different — than that.
A stand-alone bill to repeal “Don’t Ask, Don’t Tell” was introduced in the House of Representatives, for the first time, in 2005 by then-Congressman Marty Meehan. A stand-alone measure was not introduced in the Senate until nearly six years later. In the interim, omnibus (or large, multi-issue) legislation provided the foundation for building support, in both chambers, to finally end the military’s ban.
Or, to put it more simply (and more bluntly): Repeal of “Don’t Ask, Don’t Tell” would not have happened without repeal legislation being included in larger, comprehensive bills.
That truth is one of three misconceptions corrected by LGBT advocate and journalist Michelangelo Signorile (pictured) in an eye-opening - and accurate - new column at The Advocate.
Signorile writes that the “revisionist history” regarding stand-alone legislation, “plays on all the others, particularly since it was grassroots activists, along with SLDN, who pushed hard early on to get repeal included in the defense authorization bill.”
“While DADT repeal did eventually pass by itself,” Signorile notes, “it would not have been taken seriously had it not originally been included in the defense bill, a must-pass piece of legislation. Attaching repeal to the bill forced senators to grapple with the prospect of voting against funding for the troops in order to pander to religious conservatives and Pentagon hard-liners. In the end Republicans and a handful of Democrats chose to filibuster the bill twice, but not without significant hand-wringing, which only heightened the repeal effort’s relevance. But even more important, as the year dragged on, the inclusion of DADT repeal in the defense bill became the excuse moderate Republican senators used to join the filibuster.”
“If repeal had been voted on as a stand-alone bill earlier in the year,” he adds, “it wouldn’t have had much relevance or momentum. And voting on the bill prior to release of the Pentagon study surely would have doomed it.”
Or, as one blogger in D.C. summarized it, “Change is about alignment and timing.”
That’s true of almost every issue – LGBT or otherwise . . . national security or immigration. And it’s a truth that sits at the center of Immigration Equality’s advocacy on behalf of binational families. We pursue every legislative path for victory. That includes stand-alone legislation and its inclusion in broader legislation, too.
Indeed, repeal of “Don’t Ask, Don’t Tell” is probably the biggest legislative victory – for the LGBT and progressive communities – of the past few years. Yet, as Signorile rightly points out, it would not have become reality without a strategy that included placing repeal within a larger legislative vehicle. That could — as UAFA champions Jerrold Nadler and Patrick Leahy have both previously noted — be true for ending discrimination against binational families, too.
A smart strategy resulted in an historic win for lesbian, gay and bisexual military personnel. It is important that we focus on the real strategy behind that win – and not the revisionist history of how it happened – as we move forward in winning an equally critical victory for our families, too.
If we want to win, and win as quickly as possible, we cannot just stand alone.
To read Michelangelo Signorile’s full column in The Advocate, click here.
LGBT Asylum & The New York Times
By Steve Ralls on 02/07/2011 @ 12:38 PM
On January 29th, The New York Times ran a hotly debated article on LGBT asylum issues. As part of its coverage, the paper insinuated that, for LGBT asylum seekers, securing safe haven in the United States can be a daunting task that includes, among other things, immigration requests that potential aylees show visible evidence of their sexual orientation or gender identity. The article also went on to report a trend among straight immigrants to secure asylum by falsely claiming to be lesbian, gay, bisexual or transgender.
This morning, Immigration Equality and Human Rights First - an allied organization also quoted in the article - responded to the Times editor, pointing out that the January story does not reflect the reality of most asylum cases handled by our attorneys.
Our full, joint statement reads:
To the Editor:
Re “Gays Seeking Asylum in U.S. Encounter a New Hurdle” (news article, Jan. 29):
While we appreciate your coverage of lesbian, gay, bisexual and transgender asylum seekers, the article is not consistent with our experience in several ways.
Each year, Immigration Equality and Human Rights First provide legal representation to hundreds of asylum seekers, and our legal team and pro bono lawyers win safe haven for most of these individuals.
In our experience, however, it is exceedingly rare for asylum seekers — whose families and home countries often stigmatize gay and transgender people — to present themselves falsely as lesbian, gay, bisexual or transgender to immigration officials. We have not seen an emerging trend of straight individuals claiming to be gay for immigration purposes.
Indeed, asylum seekers undergo rigorous evaluation by immigration officials to ensure that their claims are authentic. Nor have we seen a “new hurdle” for L.G.B.T. asylum seekers having to prove that they are “socially visible.” While there have been a few cases where adjudicators have demonstrated a bias in L.G.B.T. cases, we have found that most United States officials do their jobs, and verify claims made in asylum applications while respecting an individual’s identity as an L.G.B.T. person.
Until L.G.B.T. rights are respected around the world, asylum remains a lifeline for those fleeing persecution.
Victoria Neilson Lori Adams New York, Feb. 1, 2011
The writers are, respectively, legal director of Immigration Equality and staff attorney of the Refugee Protection Program, Human Rights First.
Congressman Mike Honda Calls for Inclusive Immigration Reform
By Steve Ralls on 02/04/2011 @ 10:38 AM
Following last week's Senate floor statement by Senator Patrick Leahy of Vermont, another influential Member of Congress is calling on colleagues to pass immigration reform that includes LGBT binational families.
Yesterday, Congressman Mike Honda (D-CA) penned a new op-ed in Politico, making a strong, economic case for fixing our country's broken immigration system. Honda, whose own bill - the Reuniting Families Act - also includes language to end discrimination against our families, reiterated his strong belief that any immigration measure must address the inequality faced by LGBT families.
" . . . the Reuniting Families Act, which I plan to reintroduce this Congress, would allow all Americans to be reunited with their families — including gay, lesbian, bisexual and transgender permanent partners," Honda says in his column, noting that, "American workers, with their families by their side, are happier, healthier and more able to succeed than those living apart from loved ones for years on end. By pooling resources, families can do together what they can’t do alone — start small businesses, provide care for the young and old, create U.S. jobs and contribute more to this country’s welfare."
Honda (pictured here at an Immigration Equality event with Shirley Tan, Jay Mercado and their twin sons), also serves as the Democratic senior whip. The Congressman has been an outspoken advocate of all immigrant families, including LGBT families. In November, he also wrote an op-ed in the San Francisco Chronicle, with NFL linebacker Scott Fujita, calling for inclusive reform.
To read Congressman Honda's full Politico op-ed, click here.