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Green Card By Marriage

The Defense of Marriage Act (DOMA) has been negatively affecting individuals since it was enacted in 1996. Under this U.S. federal law, the definition of marriage is limited to mean a legal union between one man and one woman. §3 of DOMA specifically codifies the non-recognition of same-sex marriage for all federal purposes including but not limited to insurance benefits for government employees, Social Security survivors’ benefits, and immigration. As immigration law is federal, the government agencies apply DOMA’s definition of marriage for these cases; those gay and lesbian couples legally married in one of the six states that perform and recognize same-sex marriage, in addition to Washington, D.C., still are not considered married for immigration purposes.As of 2010, there are upwards of 650,000 same-sex couples in the country. Of these couples, 79,200 include at least one partner who is not a U.S. citizen or naturalized as a citizen. Under U.S. immigration policy, citizens are able to obtain permanent residence for a different-sex spouse but this option is not available to same-sex partners under DOMA.DOMA Defense of Marriage ActThe implications of these limitations are multifold: gay and lesbian U.S. citizens are unable to successfully petition for their spouses, the non-citizen partner is unable to accompany their citizen spouse in receiving family or employment-based visa, and non-citizen partners are unable to obtain waivers or relief from removal despite their marriage. DOMA, then, restricts same-sex couples from receiving benefits that they would were they in different-sex marriages.This week, a lesbian couple filed a federal lawsuit - seeking class-action status - in California in an attempt to resolve this discrepancy. Jane DeLeon, a Philippines citizen, has been married to Irma Rodriguez for three years. Ms. DeLeon was sponsored for a green card by her employer; however, she is unable to obtain residency due to DOMA. The suit is filed by the Center for Human Rights and Constitutional Law on behalf of Ms. DeLeon and her twenty-six year old son; Mr. Peter Schey, the President of the Los Angeles-based organization, hopes to not only solve Ms. DeLeon and Ms. Rodriguezs’ immigration woes, but to also stop the deportation of individuals in same-sex marriages due solely to their marriages being unrecognized due to DOMA.Ms. DeLeon, according to the lawsuit, is eligible for a green card but needs to obtain a waiver because she entered the country as though she were married when she was actually in a common law relationship with the father of her son. The waiver would be approved if the foreign national’s absence from the country would cause extreme hardship to a spouse or parent of an American citizen. Ms. Rodriguez suffers from a serious medical condition which would possibly cause extreme hardship were Ms. DeLeon to be deported to the Philippines. Despite this circumstance, federal immigration authorities denied Ms. DeLeon’s waiver application due to the fact that her marriage is not legally recognized by DOMA.Similar lawsuits have been filed by immigration advocates on behalf of numerous same-sex couples. The over-arching allegation is the refusal by DOMA to legally acknowledge same-sex marriages is a violation of their constitutional rights. Jane DeLeon and Irma Rodriguez are extending this allegation as DOMA is preventing them from partaking in the same immigration benefits as a different-sex couple would be able to enjoy under the same circumstances.The Obama administration has already determined §3 to be unconstitutional, however, until the repeal of the law or a final judicial decision is passed on the law, the Department of Justice will still enforce DOMA. Therefore, while we wait on the courts and the legislative process to proceed – a matter that is painstakingly slow – future steps become obscured in a mist of uncertainty and patience is tried to the utmost. While same-sex bi-national families are being torn apart, though, is patience really a virtue?
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