US Visa Discrimination against Gays and Lesbians: A Long Road Finally Nearing the U.S. Supreme Court

by Bill Hutchinson

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17 November 2010

Canada goes so far as to explicitly offer safe haven to gay couples who cannot live together legally in the U.S. or elsewhere – even when neither member of the couple is a Canadian citizen.

Under Canadian law, "The separation of common-law or same sex partners who reside together in a genuine conjugal-like relationship is grounds for [humanitarian and compassionate] consideration."²³

Immigration Equality recently worked with an American-Indonesian couple who were torn apart after the Indonesian partner’s US work visa expired.²⁴

They have both been accepted by the Canadian government, and are preparing to reunite there later in the year.

DOMA Under Attack

At present, the closest thing to a foolproof way for gay foreign nationals to be able to live in the U.S. is to buy their way in. A minimum business investment of $500,000 will gain an individual special consideration.²⁵

But serious efforts are underway in Congress to repeal DOMA, and thus eliminate the federal roadblock that prevents all gay and lesbian bi-national couples from equal rights under immigration law.²⁶

President Barack Obama and outgoing Speaker of the House Nancy Pelosi are among those on record in favor of repeal, as is now former Georgia Congressman Bob Barr, the man who proposed it.²⁷

Ironically, in 2009, The Department of Justice under President Obama defended DOMA in the case of Smelt vs. United States, claiming a duty to do so under its constitutional responsibility to defend federal laws – the same basis on which the DOJ has defended “Don’t Ask Don’t Tell,” the military restriction on service by gays and lesbians that the President has also asked to be repealed.

Conservative Backlash

The recent election of traditional right-wing conservatives and new-style “Tea Party” candidates to a majority in the House of Representatives, however, means the new Congress is not likely to be sympathetically disposed toward gay-rights issues.

Among the opposition is Georgia Rep. Paul Broun, present holder of Bob Barr’s legislative seat, who recently wrote on his Website of his plans to vigorously oppose any attempt to repeal DOMA.²⁸

“DOMA was signed into law 13 years ago by a Democratic President because lawmakers began to see the assault on traditional marriage,” said Broun. “Over a decade later, traditional marriage – a principle tenant in our Judeo-Christian values - is under assault more than ever before.”

Prospects also seem less bright than a year ago for passage of the Uniting American Families Act (S.424), which expressly grants equal visa consideration for gay and lesbian domestic partnerships. (A second bill, Reuniting Families Act, H.R. 2709, seeks the same purpose and contains the UAFA in Section 2.)²⁹

Roughly 150 legislative co-sponsors and President Obama, among others, have by now endorsed UAFA/RFA, and supporters claim to be optimistic.

“The list of organizations – including faith and immigrant groups – who support an inclusive immigration effort is long and diverse,” noted Steve Rails of the Immigration Equality Action Fund.

“To date, there has not been a single lawmaker, from either party, who has said he or she would oppose a comprehensive immigration reform bill simply because UAFA and LGBT families are included.”

But both bills remain blocked in the committee procedures of their respective houses -- SR. 424 in the Senate Judiciary Committee, the House bill in the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law.³⁰

Privately, gay leaders express concern that the current national push for some sort of immigration reform will result in legislation that “throws us under the bus -- again,” in the words of one attorney active in gay immigration issues.³¹

Some leading proponents of immigration reform say that special provisions for gay partnerships would doom any comprehensive change in federal immigration policy.

“Immigration is hard enough without adding same-sex marriage to the mix,” Kevin Appleby of the U.S. Conference of Catholic Bishops, has said.³²

 “It introduces a new controversial element to the issue which will divide the faith community and further jeopardize chances for a fair and bipartisan compromise [on immigration reform]," Appleby told a reporter last year.

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Thailand Law Forum is maintained through the assistance of many parties, including Chaninat and Leeds, a full service law firm in downtown Bangkok. At Chaninat and Leeds, K1 visa attorneys in Thailand specialize in immigration law and marriage law.

32. www.washingtonpost.com/wp-dyn/content/.../AR2010091204159.html