By Erin Rook, PQ Monthly
As the marriage equality movement builds momentum in states across the nation, many couples are stuck in a tragic Shakespearean time warp. Like modern-day Romeos and Julians, Romitas and Juliets, binational same-sex couples are struggling for the right to simply be together.
“It’s a really exciting time,” says Rachel B. Tiven, executive director of Immigration Equality. “We’re seeing change very rapidly, but not fast enough for people that need to keep their family together today.”
According to the Williams Institute, there are at least 36,000 LGBTQ families directly affected by immigration discrimination. For these families, there is currently no relief in legal marriage because the Defense Against Marriage Act bars recognition of same-sex marriages for the purpose of immigration.
THE PATH TO COURT
Immigration Equality, a national LGBTQ immigrant rights organization, is working to change that. The group filed a lawsuit April 2 challenging Section 3 of DOMA on behalf of five binational gay and lesbian couples representing diverse backgrounds and immigration situations.
“We’d run out of options in terms of other ways to get green cards for people who aren’t entitled to them based on their marriage to a U.S. citizen,” Tiven says.
The legal advocacy group decided to pursue the lawsuit after efforts to find a middle path failed. Despite legal precedent, advocates were unsuccessful in persuading immigration officials to place a hold on green card applications while the constitutionality of DOMA is addressed in the courts and the legislature. The United States Citizenship and Immigration Services (USCIS) previously granted holds to widows and widowers of U.S. citizens whose spouses died in the midst of their green card applications while legislation was pending.
“The government itself has said that [DOMA] is unconstitutional. The Justice Department is in agreement with the challenge of DOMA. They’ve taken the position that they must continue to enforce DOMA,” Tiven says. “We disagree, but respectfully understand why [the government] can’t grant green cards. But at the very least they should put them on hold.”
Because gay U.S. citizens cannot sponsor their foreign-born spouses for green cards, couples are forced to make difficult decisions. Some spouses are able to obtain student or work visas that grant them an extended stay. Other couples travel back and forth between home countries on tourist visas. If the foreign-born spouse’s home country recognizes same-sex marriages, relocation may be an option. For those who cannot qualify for or afford the fees and travel costs associated with temporary visas or whose home countries are no more accepting of same-sex couples, they have no choice but to live under the radar or be separated indefinitely.
THE “LUCKY” ONES
Grants Pass native Daniel Clark Orey, Ph.D., and his Brazil-born husband Milton Rosa, Ed.D., tried the work visa approach for 14 years before finally moving to Brazil, where their California marriage certificate is recognized.
Though Orey has been lucky — he has found both work and acceptance in his husband’s home country — he is still frustrated by the double standard he faces as a gay citizen.
“I have to pay taxes in both countries, yet I do not have the rights in one of them,” Orey says. “I have long had a passion for Latin America, so marrying a Brazilian has allowed me to live here. But it angers me that we, and many others, do not have the freedom to choose that straight married people do.”
U.S. citizens in heterosexual relationships can obtain green cards for their foreign-born spouses with relative ease and a little over $1,000 in filing fees. Orey and Rosa, on the other hand, spent more than $30,000 over the 14 years they resided in the United States together on visa fees and travel to and from Brazil, since Rosa’s visas had to be renewed in his home country.
“He was interviewed various times and asked why he was living with the same person,” Orey says. “Had they found out we were married, he would have been denied the visa. It was just too nerve-wracking and expensive to continue like this when [in Brazil] all is well.”
Brazil has been much kinder to Orey, 56, and Rosa, 50. Both men are professors in the distance education program at the Universidade Federal de Ouro Preto, where they share an office. Orey also serves as the Special Assistant to the Director of International Affairs at the UFOP. The university has sponsored Orey for a permanent visa – an offer he is accepting because gaining residency through his husband is more complicated and time-consuming.
“I am treated and respected as anyone would [be] — to be honest, probably better than Milton was in the states,” Orey says. “I haven’t really lost anything, other than a few [pounds], and I have gained a whole lot. To be able to live and work in South America as a university professor carries a bit more respect here than in Sacramento. … I guess one would say we are the lucky ones.”
TILL DEPORTATION DO US PART?
For the less fortunate couples, relief cannot come soon enough, which is why Immigration Equality is pursuing justice for binational couples in the courts and in the legislature, with the Uniting American Families Act.
The UAFA is currently attached to other immigration legislation in both the House (with 136 cosponsors) and the Senate (25 cosponsors). None of the current cosponsors are Republican. And while there are a number of Oregon and Washington lawmakers among the cosponsors, the following have yet to sign on to the act: Oregon Reps. Greg Walden (R) and Kurt Schrader (D) and Washington Reps. Jaime Herrera Beutler (R), Doc Hastings (R), Cathy McMorris Rodgers (R), Norman D. Dicks (D), and David G. Reichart (R).
Although a number of other cases are currently challenging DOMA (and being defended by counsel hired by the House Bipartisan Legal Advisor Group), Tiven says the Immigration Equality suit is needed because victories in the other cases may not be comprehensive enough to cover immigration issues. Still, with every legal or legislative victory, Immigration Equality will return to USCIS to make the case for granting holds while DOMA’s constitutionality is in question.
“What’s particularly important about immigration issues is that people can’t wait. If you’re up against a deadline, saying it will be better in a year doesn’t necessarily help your family and you could be really stuck,” Tiven says. “It’s not to say that there aren’t many urgent consequences to discrimination against LGBT families. But if your visa is running out tomorrow, do you leave your partner and children or stay out of status? Does a U.S. citizen abandon their country? How does someone make the choice between aging or sick parents for whom they are the primary caretaker and their partner? Our job is to push for relief as quickly as possible and we do that any time there’s an opening.”
Learn more about LGBTQ immigration issues, the case against DOMA, and the UAFA by visiting immigrationequality.org.