The Fate Of Immigration Reform For Same-Sex Binational Couples

On Tuesday, the Senate Judiciary Committee had the opportunity to consider changes to the immigration reform bill that would have provided much needed relief to same-sex binational couples. Those changes would have improved the bill by staying true to the core principles of the bill by ensuring family unity is at the heart of the nation’s immigration laws and policies.

At the end of the mark-up, Chairman Patrick Leahy (D-VT) offered an amendment to recognize same-sex spouses for family based immigration sponsorship, a provision that has also been proposed before in a separate bill as the Uniting American Families Act (UAFA). Committee Republicans drew a line in the sand, however, and declared that the amendment’s inclusion would destroy Republican support for the entire bill. Rather than jeopardize the bill’s passage, the Chairman withdrew the amendment from consideration.

Although Republican opposition to including this provision — which would end discrimination in immigration against LGBT families — was extremely disappointing, the bill heads to the Senate floor with a number of important provisions that will benefit all LGBT immigrants. These provisions include:

  • Most importantly, creating a path to citizenship for the estimated 267,000 undocumented immigrants who identify as LGBT. Recent research has shown that at least 267,000 of the 11 million undocumented people living in the United States identify as LGBT. The Senate bill’s path to citizenship means better wages, greater employment security, and access to critical social services for undocumented LGBT immigrants.
  • Ending the one-year ban on asylum. The right to seek asylum in the United States is important in order to protect LGBT people around the world from persecution. Without the bill, many credible asylum claims are rejected since LGBT asylum seekers often miss the one-year filing deadline, either because they do not know that sexual orientation and gender-based persecution are grounds for seeking asylum or they do not feel safe disclosing their LGBT status to government officials so soon after arriving in the United States. This key provision withstood numerous attacks from Committee Republicans yesterday.
  • Prohibiting the use of solitary confinement based on an immigration detainee’s sexual orientation or gender identity. Prolonged solitary confinement has been used on LGBT detainees under the guise of protecting them. The bill would explicitly end the harmful practice of placing immigrants in solitary confinement because of their sexual orientation and gender identity and ensure that solitary confinement is only used in extreme circumstances.
  • Limiting the use of detention and increasing the use of less restrictive alternatives. LGBT detainees are often subjected to increased rates of discrimination, mistreatment, and abuse in immigration detention, both at the hands of fellow detainees and by guards. Limiting the use of detention to when it is absolutely necessary and promoting the use of less restrictive alternatives for immigrants who are not a flight risk protects LGBT immigrants from the dangers they face in detention.

Although protections for families headed by same-sex couples were not included in the committee’s bill, the fight is not over. UAFA could be introduced again as an amendment to the bill on the Senate floor in the coming weeks. But beyond Congress, there are opportunities in the two other branches of the federal government to provide relief to same-sex binational couples.


The Supreme Court will soon hand down its decision on the constitutionality of the Defense of Marriage Act (DOMA). If the court finds DOMA unconstitutional, the federal government will then be able to recognize same-sex spouses as they do different-sex spouses for all federal benefits and protections, including for family-based immigration sponsorship.

Even if DOMA remains on the books, however, President Obama has the authority to use the prosecutorial discretion outlined by his administration in June 2011, which stated Immigration and Customs Enforcement would focus its resources on deporting criminals and persons who are a threat to public safety, and not on tearing apart law-abiding family members. The administration later clarified that its definition of family included long-term same-sex binational couples. As Congress continues to debate commonsense immigration reform, the Obama Administration should keep true to this principle and focus on keeping families together, including LGBT families.