Same-Sex Bi-National Couples: Joy Turns to Sorrow

From the Legal InfoLine

There have been some very confusing developments concerning same-sex bi-national couples during the past few days. It all started with a couple of deportation cases being put on hold because the couple was married, and the US citizen had applied for permanent residency for the foreign national spouse. These isolated cases then resulted in a statement from immigration officials that all green card applications of same-sex married couples would be held in abeyance. Because of President Obama’s statement that he feels DOMA is unconstitutional, there was hope in the LGBT community that the applications would be held in abeyance until there was a final determination as to whether DOMA was constitutional.

These developments sent shock waves of joy through the same-sex bi-national community. However, yesterday immigration officials made it clear that the Defense of Marriage Act (DOMA) is still being enforced and that any green card applications from married same-sex bi-national couples will be denied and not held in abeyance.

The Legal InfoLine gets many calls from bi-national couples who are desperate to find a way to stay together after the foreign national’s visa expires. And so the hope that was raised and then dashed is particularly painful. The unfortunate reality continues to be that a US citizen who is in love with a foreign national of the same sex, in most cases has no ability to improve the foreign national’s immigration status, and celebrating their love for each other by getting married can have negative consequences for the foreign national spouse.

Although immigration officials will not officially recognize a same-sex married couple, if they learn that the couple is married and the foreign national spouse has a short-term visa, they may use the marriage to deny that spouse entry into the US or deport the person if they are in the US. The reason for this is that they may interpret the fact that the foreign national is permanently attached to a US citizen as an indication that the person may overstay their visa date. For more information on why getting married poses risks, see our GLAD publication about this.

GLAD strongly recommends any same-sex bi-national couple who wants to marry or wants to deal with an immigration issue contact an immigration attorney who is experienced in LGBT issues BEFORE taking any action. The events of the last few days show that relying on what is being said in the media or what comes up on a Google search may prove to be inaccurate. Immigration is a high stakes issue, and you want to make sure that you have accurate advice before you take any action. GLAD can provide referrals to experienced immigration attorneys in the six New England states by calling our Legal InfoLine at 800-455-GLAD (4523).