DOMA and Immigrant Status
The 1996 Defense of Marriage Act (DOMA) prohibits the federal government from recognizing same-sex unions even if they are legal in any of the states. The most well-known effects of this legislation are that gay couples cannot file joint income tax returns, do not have automatic rights of hospital visitation or inheritance, cannot be automatic beneficiaries for pension or insurance plans, and so much more. In fact, there are at least 1,138 different automatic rights and privileges afforded to legally married heterosexual couples that the DOMA denies to same-sex marriages or civil unions.
The Washington Post recently published a story of one of the more little-known effects of DOMA: a lesbian couple legally married in Washington, DC, that may be separated by the law because one of the spouses has an expiring student visa. Normally, a citizen spouse in a bi-national marriage can automatically sponsor the immigrant spouse for a green card. Since the federal government does not recognize same-sex unions, the effect is that the immigrant spouse would have to return to his/her home country unless they can find another way to stay in the United States. The Family Equality Council estimates that around 36,000 couples (46% of which have children) are affected by this rule.
In September, Secretary of Homeland Security Janet Napolitano issued a directive recognizing binational same-sex couples as families and placing them on “low priority” status for deportation proceedings. This action was lauded by LGBT rights advocates as a step in the right direction. A more permanent solution, of course, would be a complete repeal of DOMA, which is currently on the Supreme Court docket this term.
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