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Benefit of Marriage #4: Immigration and Permanent Residence

By Fannie

Immigration is a contentious issue and there are many directions an article about immigration could take. As this article is part of my Benefits of Marriage series, I want to explore how immigration law relates to marriage law. My point in this series is to iterate how the fight for marriage equality is not an abstract, theoretical game. While so-called marriage defenders discuss at length about the alleged future harm to marriage that would be caused by marriage equality, they are unable to provide anything more than abstract predictions. They talk a big game, stating as fact their beliefs about "family destruction," "downfall of society," and "sex-segregated marriage" (yes, really). But ultimately, their beliefs are just that. Beliefs.

For those of us on the side of marriage equality, these are our specifics. The facts. The real, everyday harms that are occurring to real people. Right now.

Before discussing how immigration laws are related to marriage, it will probably be helpful to provide a brief overview of immigration law. The basic law governing immigration in the US is the Immigration and Nationality Act of 1952 (INA). As this helpful overview states, "For INA purposes, an 'alien' is any person who is not a citizen or a national of the United States. There are different categories of aliens: resident and nonresident, immigrant and nonimmigrant, documented and undocumented ('illegal')."

Why is US citizenship important for those living in the US? Because under the 14th Amendment to the US Constitution, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In other words, and in theory at least, all US citizens have certain Constitutionally-protected privileges and rights. There is no such guarantee for non-citizens. For some concrete examples of the rights that US citizens have, they can: vote, receive more public benefits than non-citizens, receive legal protections, freely travel between countries with no time restrictions, and cannot be removed or deported from the US.

And abstractly, of course, you can say that you're a bona fide part of the good 'ol US of A.

Okay, sorry if this article is sorta Civics 101, but how does one become a US citizen? There are two ways: by birth or by naturalization. (Children from other countries who are adopted by US citizen parents automatically become US citizens when they move to the US).

Generally, there are numerical limits on the numbers of aliens who are allowed to become naturalized every year. The general requirements for naturalization include a period of continuous residence and physical presence in the United States; residence in a particular USCIS District prior to filing; an ability to read, write, and speak English; a knowledge and understanding of U.S. history and government; good moral character; attachment to the principles of the U.S. Constitution; and,
favorable disposition toward the United States.

The general rule is that applicants for naturalization must first have been admitted to the US as a lawful permanent resident. To become a permanent resident, one usually needs a family member or employer to sponsor him or her. As the group Immigration Equality notes, employer sponsorship is the most common way that LGBT persons to become permanent residents. For, only opposite-sex spouses count as "family members" for purposes of green card sponsorship.

Okay, let's pause for a minute to note that a foreigner who is in a same-sex relationship with a US citizen has exactly one less route to permanent residence (and therefore, to US citizenship) than does a foreigner who is married to a US citizen.

This policy applies even to those who were married in countries or states where two persons of the same sex are allowed to legally marry. Thanks again, DOMA!.

Hundreds of thousands of opposite-sex couples take advantage of the "family" route to permanent residence. As one immigration attorney notes,

"Each year, over 400,000 citizens of the United States marry foreign-born persons and petition for them to obtain permanent residence in the U.S. Spouses of U.S. citizens are considered "immediate relatives" under the immigration laws, and are exempt from all numerical quota limitations. In other words, marriage to a U.S. citizen is the fast lane to a green card."

In 2000, there were approximately 35,820 bi-national same-sex couples in the US who would benefit from equal immigration rights.

So, here are some options to give same-sex couples equal rights with respect to this unfair set of laws:

1. Repeal DOMA. This would mean that for purposes of all federal laws, benefits, and privileges, marriage would no longer be restrictively defined as only "one man and one woman." Repealing DOMA will mean that same-sex couples legally married in other countries and states would receive the same immigration benefits as opposite-sex married couples.

2. Pass a law that recognizes same-sex "permanent partners" as "family" for green card sponsorship purposes. In fact, Contact congress now and tell them to support the Uniting American Families Act!

3. The best option, in terms of receiving all federal marial benefits, would be to repeal DOMA and allow same-sex couples to marry in (every state of ) the US. The repeal of DOMA would mean that the word "spouse" in every federal law could include same-sex spouses as well as opposite-sex spouses. If same-sex couples were given full marriage rights in the US, they could freely sponsor their non-citizen same-sex spouses for legal permanent residence.

(Just for fun, see if you could pass the Naturalization test)

Full post as published by Fannie's Room on January 28, 2008 (boomark / email).