By Robert L. Reeves and Jeff L. Khurgel
In a monumental executive decision, President Obama has instructed the U.S. Justice Department to no longer defend the Defense of Marriage Act (“DOMA”), the law prohibiting federal recognition of same-sex marriages. This major victory for gay rights advocates signifies a turn of events from the previous July 2010 decision by the Justice Department to defend DOMA.
Attorney General Eric Holder said in a statement that “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny." Mr. Holder continued: "The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination."
Same-sex binational couples—that is, couples in which one partner is a U.S. Citizen or Permanent Resident, while the other is a citizen of a foreign country—have reason for optimism that they may one day enjoy the immigration benefits available to heterosexual couples. Currently, gay people are deprived of equal immigration rights. In a same-sex relationship, the U.S. Citizen partner cannot confer immigration benefits on the noncitizen partner even though they may have been validly married in a jurisdiction that has legalized same-sex marriages.
This becomes particularly problematic for noncitizens in the U.S., as many waivers of inadmissibility are based upon marriage to a U.S. Citizen or Permanent Resident. If a gay person is placed in removal proceedings, and has a same-sex partner, he or she would not be able to assert the requisite level of hardship to the U.S. Citizen partner which would prevent removal from the U.S. It follows that a same-sex partner with HIV would be unable to establish the requisite spousal relationship to apply for a waiver in order to obtain permanent residence.
Although immigration officers within the U.S. are not authorized to issue benefits to same-sex couples, the Department of State (“DOS”)—the federal agency charged with issuing U.S. visas abroad—has permitted the first trickling of benefits to some couples. Namely, DOS regulations permit a cohabiting partner of a nonimmigrant visa holder to apply for a special visa in order to accompany the partner nonimmigrant visa holder to the US. The couple must be able to document the long-term nature of the relationship. The same-sex partner visa generally has a one-year duration and must be renewed every six months. As with most other nonimmigrant visa categories, the cohabitating partner must prove that they will return to their home country after their temporary stay and they are not permitted to work while in the U.S.
In a move to extend its diplomats a similar privilege, DOS, in a recent February 2011 Cable, indicated that it will permit the same-sex partners of its diplomats stationed abroad a J-1 visa (normally reserved for exchange visitors such as scholars and au pairs) for the purpose of accompanying a U.S. citizen diplomat to the U.S. The visa would permit the holder to live and work in the U.S. legally. This quiet, but important gesture by the Obama administration is a step in the right direction.
While U.S. immigration benefits are currently closed off for same-sex couples, the Executive decision not to defend DOMA signifies recognition of DOMA’s inevitable demise. Some visa provisions for certain same-sex partners are already in place, and it is only a matter of time until more comprehensive equal immigration benefits are extended to same-sex couples.