Remedying Discrimination Against Binational Same Sex Couples

Laraine E. Schwartz, Esq.  |  LGBT Immigration UpdateThis Week, by a vote of 13-5, the Senate Judiciary Committee approved the bipartisan immigration reform bill sponsored by the Senate’s “Gang of Eight”, but human rights advocates suffered a major disappointment when amendments that would have ended discrimination against  binational same sex partners were scrapped by Democrats at the last minute.

Senator Patrick Leahy of Vermont withdrew amendments he had submitted that would have incorporated the Uniting American Families Act (UAFA) into the immigration reform bill. The purpose of UAFA is to eliminate discrimination against same sex partners by permitting them to sponsor their partners for United States citizenship in the same way that heterosexual married couples are legally permitted.  Democratic Senators have stated that they want to include the new protections in the comprehensive bill but were told by their Republican counterparts that doing so would guarantee blanket opposition by Senate Republicans, killing any chance of passing immigration reform this session.

Under the current laws, U.S. Citizens and Legal Permanent Residents can sponsor their spouses for immigration purposes. However same sex partners, even if legally married, are ineligible for this form of sponsorship and, as a consequence, thousands of gay and lesbian couples are either torn apart or forced to live together in the U.S. illegally, under constant fear of deportation.

To be considered a “permanent partner” under UAFA, an individual must be over 18 years old and

  • be in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment;

  • is financially interdependent with that other individual;

  • is not married to or in a permanent partnership with anyone other than that other individual;

  • is unable to contract with that other individual a marriage cognizable under this Act;

  • is not a first, second, or third degree blood relation of that other individual.

Critics of UAFA claim that it will open the door to an increased level of fraud perpetrated by individuals looking to stay in the United States. This criticism does not stand up to scrutiny.  Under the Act, a same sex couple would have the same burden of proof as any married couple to document that their relationship is genuine. The same enforcement procedures that are currently used to authenticate whether married couples are committing fraud would be applied to same sex couples. There is no credible reason to believe that the bill will cause an increase in fraudulent applications. In fact, it seems the only reason to oppose this legislation is to continue the discrimination.

Democrats wrestled with whether or not to include the amendments in the final bill, but decided that getting a bill without UAFA protections through committee was preferable to not getting any bill passed at all.

While compromise is standard operating procedure in Washington, blatant discrimination is no longer tolerable.  We must ensure that Democrats in the Senate bring the amendments up again before the full Senate votes on the immigration plan. The passage of the added UAFA provisions may now be a longshot from a political standpoint, but protecting the rights of thousands of same sex partners is more important than political gamesmanship.

It is time to stop the discrimination against same sex couples that is currently a part of our nation's immigration policy.

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