Last week, the Obama administration issued guidance for immigration officials that clarified that same-sex couples should be treated as “family. ” While the development is a long ways from providing full protection for the countless couples and families who face a sea of immigration-related obstacles, it is the first necessary step in that direction.
Because of the Defense of Marriage Act, which prevents the federal government from recognizing same-sex marriage, binational LGBT couples — even those who are legally wed in the United States — are not treated the same as heterosexual binational couples. Among the discrepancies, a U.S.-born partner cannot sponsor his or her same-sex spouse for immigration, a right reserved only for heterosexual spouses. According to Immigration Equality, about 36,000 binational same-sex couples are living in the United States, nearly half of whom are raising children, and an untold number of whom are struggling to keep their families together.
A June 2011 Department of Homeland Security memo clarified that U.S. Immigration Customs and Enforcement officials are authorized to use prosecutorial discretion — which allows for the halting of deportation proceedings or the closing of cases — in certain instances. One of the factors to be considered was “family relationships,” which lacked a specific definition. LGBT advocates, as well as dozens of Congressmembers — including Pennsylvania’s Bob Brady and Chaka Fattah — have spent more than a year urging DHS to clarify that same-sex couples are included in that category.
And, on Oct. 5, DHS released guidance doing so. The memo stated that, to be considered a “family,” the couple must be in an exclusive, longterm relationship with one another and intend to maintain that relationship, as well as share a common residence, financial obligations and assets. While DHS emphasized that the “family relationship” consideration is just one of many factors ICE can consider in the process, the extension of this definition to LGBT couples should be seen as one of a series of building blocks to equality.
Other agenda items need to include the passage of the Uniting American Families Act, which would amend the Immigration and Nationality Act to allow same-sex partners to sponsor one another for a green card. The bill, introduced every session for over a decade, has seen little movement in Congress. It was last introduced in April 2011 but has yet to gain any traction in either the House or Senate. Ultimately, however, the move that would go the farthest in eliminating discrimination in the immigration system would be the repeal of DOMA. Like UAFA, efforts are underway in Congress to lift the law but, as of yet, have seen no progress.
While the full impact of last week’s DHS clarification on actual couples is yet to be realized, it is apparent that it has the potential to heighten awareness — both among members of the public and policy makers — about the need for further action. When the federal government declares that a same-sex couple should be considered a “family” and given the same consideration as others, yet has laws on the books that dictate otherwise, it is clear that action needs to be taken to bring our policies in line with our practices.