Olinger Law

DOMA Immigration Obstacles

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DOMA Immigration Obstacles3 Ways DOMA Hinders Immigration Benefits
4 Steps To Start Making Things Better

DOMA, the Defense Of Marriage Act, treats a U.S. citizen’s same-sex spouse as a legal stranger.   DOMA ‘s Section 3 defines marriage as between one man and one woman.  Many immigration benefits available to married heterosexual couples are denied to same-sex married couples.

When DOMA was enacted in 1996 no state permitted same sex marriage. Today, several states and the District of Columbia do. That makes no difference to immigration, which is controlled by Federal law, including DOMA.

  1. DOMA prevents a legally married gay U.S. citizen from applying to get a visa (green card) for his or her spouse.
  2. DOMA prevents a same-sex spouse of a foreign student, worker, investor or other nonimmigrant from getting a “derivative beneficiary” visa in the same category.
  3. DOMA prohibits a same-sex spouse  from seeking deportation relief, when such relief depends upon the existence of a “qualifying” family member. (A spouse qualifies.)

In the immigration law business, we craft creative “work arounds,” but that’s not a permanent solution.  Nor does it resolve DOMA’s constitutional and civil rights violations.

The Obama administration is taking steps in the right direction.

  1. February 23, 2011:  The Department of Justice announced that it would cease defending DOMA.
  2. May 5, 2011:  Attorney General Holder vacated an immigration appeals court ruling that denied deportation relief to an alien because he lacked a  “qualifying” U.S. citizen relative.  The alien and his long-term U.S. citizen partner, both men, are in a civil union under New Jersey law. The AG has ordered the immigration appeals court to decide whether, absent DOMA, the New Jersey civil union qualifies the alien as a “spouse” under federal immigration laws.
  3. August 17, 2011: USCIS advised its decision-makers about extended use of the visitor visa for co-habitating partners.  (Finally.  The State Department, back in 2001, reminded its consulates that the visitor visa is “appropriate for co-habitating partners of longterm nonimmigrants.”)
  4. December 28,2011:  USCIS Training Manual, “Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims”  mandates training and education about LGBTI persecution so that adjudicators can make better informed, life-altering decisions for individuals who may face very real and specific persecution in their home country.

We’re still living with DOMA.   In the meantime, we encourage our government’s educational, anti-discrimination and civil rights inroads.