Family Unification Policy Offers No Relief To Immigrants In Same-Sex Couples

Our guest blogger is Crosby Burns, Research Associate with the Center for American Progress.

Last week the Department of Homeland Security announced a sweeping rule that will largely put an end to the draconian practice of separating families for months or even years on end when seeking permanent residency in the United States. This is good news for thousands of immigrants who have faced the daunting decision of either leaving their families and the United States for an indeterminable period, or risk staying in the United States as an undocumented immigrant. Families headed by same-sex couples, however, will not benefit from this commonsense policy.

Under current immigration law, an undocumented immigrant whose spouse is a U.S. citizen is eligible for permanent residency by applying for an immigrant visa, or “green card.” However, if an individual has been in the country illegally for more than six months, that applicant must first leave the United States and apply for a “hardship” waiver at a U.S. consulate abroad before even submitting an application for a green card.

In other words, an undocumented immigrant, even one who is eligible for permanent residency, must leave his or her family before the process of applying for residency even begins. Because of long and unpredictable processing times, this means that families are separated for months or even years from their loved ones. In addition to the emotional toll this places on these families, this harsh policy also places significant financial hardship on mixed-status families when a breadwinner is forced out of the country to pursue permanent residency, making it significantly more difficult to stay afloat in difficult times.

Luckily, the new family-unity rule announced by the U.S. Customs and Immigration Services will allow qualified applicants to apply and wait for a hardship waiver while they are still in the United States instead of having to leave the country first, removing uncertainty and unnecessarily long separation times. When this law goes into effect on March 4, 2013, thousands of families will no longer be forced to choose between their families and their residency status.

Unfortunately, this policy wholly excludes families headed by same-sex couples. The federal government’s hands are tied when it comes to recognizing same-sex spouses in all areas of law, including immigration law, due to the discriminatory Defense of Marriage Act. Because of this odious law, same-sex bi-national couples are not even eligible to sponsor spouses for permanent residency in the first place because the government does not and cannot recognize their marriage. This is the case even if a couple has a legally valid marriage from one of the nine states or the District of Columbia that recognizes marriage equality.

In fact, this is just one example of how our broken immigration system unfairly treats LGBT undocumented immigrants and their families. When detained my immigration officials, LGBT immigrants are often harassed, threatened, and denied fundamental health care services because of their sexual orientation or gender identity. In the worst scenarios, LGBT detainees experience sexual or physical violence and are often placed in solitary confinement as a way to “protect” them from that violence.

Additionally, refugees seeking asylum from persecution in their home country on the basis of their sexual orientation or gender identity may be prohibited from applying for asylum if they have been in the U.S. for longer than one year. This is especially problematic considering that more than 70 countries criminalize homosexuality.

Most importantly, LGBT undocumented immigrants face the same problems that all undocumented immigrants do. Undocumented immigrants live in constant fear of deportation, lack access to crucial safety net programs, and face barriers to obtaining employment, all while playing vital roles in our communities, paying taxes, and contributing to our economy.

As Congress begins the process of reforming our dysfunctional immigration system, policymakers should be mindful of the specific barriers that LGBT undocumented individuals face when they encounter the system. This means specific legislative solutions toward removing those barriers including equal spousal sponsorship policies, commonsense asylum reforms, and a more humane detention policy.

Most importantly, for LGBT and non-LGBT immigrants alike, Congress should go big and pass comprehensive immigration reform that provides the over 11 million undocumented immigrants in the United States a path to citizenship. Doing so is critical to support the hundreds of thousands of undocumented immigrants in our community that identify LGBT.

As we approach a big legislative fight over immigration reform, advocates would do well to recognize that immigration reform is not only an immigrant issue. It’s an LGBT one as well.