On February 23, 2011, U.S. Attorney General Eric Holder sent a letter to Speaker of the House, John A. Boehner, indicating the Administration’s decision not to further defend Section 3 of the Defense Against Marriage Act (DOMA) in two pending cases, Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.) and Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.) Although the general rule in immigration law is that the U.S. must honor the laws of the place where marriages (deaths, births and divorces) take place, DOMA provides an exception since DOMA declares that marriage can only be between one man and one woman. Accordingly, although same-sex couples can marry in several states and countries, for immigration purposes, these marriages are not recognized as either a category of direct spousal sponsorship, or in the area of dependent visas, or as qualifying relatives for waivers and other relief from removal or inadmissibility.

On March 31, 2011, Congressman Rush Holt (D-NJ) wrote to Homeland Security Secretary, Janet Napolitano, requesting that she immediately halt the deportations of same-sex binational couples and resolve the case of Henry Velandia.

Then, on April 6, 2011, approximately 85 organizations sent a joint letter to Secretary of Homeland Security (DHS), Janet Napolitano, Juan Osuna of the Executive Office of Immigration Review (EOIR) in the Justice Department, and Thomas Hussey of the Office of Immigration Litigation (OIL) in the Justice Department asking that:
• I-130 visa petitions and refugee/asylum relative petitions and others filed on behalf of married same-sex partners as principals or derivatives or self petitions under VAWA be held in abeyance pending development of interim measures or resolution of DOMA;
• Concurrently filed applications for adjustment of status and petitions if filed on the above grounds be allowed to be filed and held in abeyance;
• The agencies decline to initiate or continue removal proceedings against noncitizens who are principals or derivative beneficiaries on petitions filed by or on behalf of same-sex spouses, or grant deferred action status;
• Derivative applicants in asylum applications involving same-sex spouses be allowed to seek relief from removal, in addition to similar relatives in cancellation of removal, waivers or VAWA cases;
• Proceedings in immigration court be terminated, or allow motions to reopen or reconsider to administratively close or continue proceedings until there is a final judicial resolution regarding DOMA;
• OIL attorneys be allowed to agree to or not oppose requests for stays of removal in federal court litigation until the DOMA case is resolved or there is a legislative resolution concerning DOMA and/or to request a continuance or request the court to hold such cases in abeyance or to stay the order until there is a resolution concerning section 3 of DOMA.

The Administration took a historic step forward in announcing its conclusion that Section 3 of DOMA is unconstitutional and indefensible. A Massachusetts federal court has ruled that DOMA cannot withstand even rational basis review. See Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010).

In a blog post by Victoria Nielsen, Legal Director of Immigration Equality (www.immigrationequality.org), she recommends that same-sex couples:
• Not race to the courthouse to challenge DOMA since the House of Representatives is likely to defend it some how. Instead, litigants or potential litigants should consult Immigration Equality or the American Immigration Lawyers Association (AILA) to discuss litigation strategy and get amicus help.
• Getting married might now makes sense in certain situations where the person is already out of status or is on a dual intent visa. People coming and going on temporary nonimmigrant visas or the visa waiver program requiring a permanent home abroad should probably still not get married to preserve future rights to use temporary visas or else they will be denied entry if the border officials have reason to believe the applicant is coming to the U.S. to stay permanently.
• DHS is still denying I130s visa petitions for same-sex partners, so it would not be advisable to step forward and apply until there is a firmer policy in place that would help applicants.
• Advocating for better laws, policies, and interim relief may be a better strategy unless litigation is adequately coordinated with groups that know this area the best such as AILA and Immigration Equality. For example, while DOMA is challenged, an important strategy is to call upon Congress to enact the Uniting American Families Act (“UAFA”), a bill that would allow U.S. Citizens and Lawful Permanent Residents to sponsor their long-term partners for immigration benefits whether or not they are married. Senator Patrick Leahy (D-Vt) reintroduced UAFA on April 14, 2011. A similar bill was introduced in the House on the same day by Congressman Jerrold Nadler (D-NY).

Immigration Equality has a very helpful Q&A about the impact of DOMA right now on international same-sex and transgender couples. Stop the Deportations: The DOMA Project blog has stories of how real couples are harmed by DOMA’s application to immigration law and marriage law generally: Real people facing tremendous hardships. A few very brave couples have decided to test their immigration marriage-based cases in immigration court in California, New Jersey and New York.

In the meantime, a couple of doors have opened a crack for international same-sex couples, none of which are adequate solutions where equal rights to marriage and sponsorship is needed instead. Same-sex and cohabitating heterosexual partners of diplomats and employees of international organizations and NATO, who qualify as “immediate family members,” can now receive A and G visas. Note, “immediate family member” differs from the usual classification of “dependents,” who must be spouses and unmarried minor children under 21 years old. Now cohabitating heterosexual and same-sex partners can obtain “A” diplomatic visas or “G” international organization or NATO visas as “immediate family members”, which include spouses, unmarried sons and daughters of any age and:

“…someone who will reside regularly in the household of the principal applicant, is not a member of some other household, and is recognized as an immediate family member of the principal alien by the sending Government or International Organization, as demonstrated by eligibility for rights and benefits such as the issuance of a diplomatic or official passport or other similar documentation, or travel or other allowances. Those who may qualify for immediate family status on this basis include: any other relative, by blood, marriage, or adoption, of the principal alien or spouse; a domestic partner; and a relative by blood, marriage, or adoption of the domestic partner. The term “domestic partner” for the purpose of this section means a same-sex domestic partner. Domestic partners may be issued diplomatic visas if the sending state would provide reciprocal treatment to domestic partners of U.S. Mission members. Individuals who do not qualify as immediate family, as described above, may otherwise potentially qualify for a B-2 visa. B visa applicants are required to pay visa application and reciprocal issuance fees, if applicable.”

Otherwise, in terms of existing law, there has been on the books for some time a rather difficult but not impossible provision for domestic partners in a relationship where both are foreign nationals and only one qualifies as a principal for a visa, such as a work visa. Typically, the other partner does not qualify as a dependent spouse for nonimmigrant visas, such as H-4s, L-2s or E-2s. However, two important sources of government policy provide that where the principal partner qualifies for a long-term visa, such as H-1B, L-1, E-1/E-2, the other partner may seek a B-2 tourist visa. Although B-2 tourist visas are generally for short-term stay for six months or up to a year, the State Department’s Foreign Affairs Manual provides:

The B-2 classification is appropriate for aliens who are members of the household of another alien in long-term nonimmigrant status, but who are not eligible for derivative status under that alien’s visa classification. This is also an appropriate classification for aliens who are members of the household of a U.S. citizen who normally lives and works overseas, but is returning to the United States for a temporary time period. Such aliens may include cohabitating partners…[and] they should be advised to ask the Department of Homeland Security (DHS) for a one-year stay at the time they apply for admission. If needed, they may thereafter apply for extensions of stay, in increments of up to six months, for the duration of the principal alien’s nonimmigrant status in the United States.

In addition to the provision above, a 2001 cable from then Secretary of State Colin Powell reminds consular posts that cohabitating partners in long-term relationships who do not qualify for derivative visas to the principal partner’s visa may seek long-term B-2 status upon proof of the long term nature of the relationship. Further, since the B-2 partner cannot work in the U.S., the principal partner must be able to show the other can be financially supported.

Neither the “household member” for A and G visa purposes nor the B-2 visitor visa adequately cover the range of situations that international couples need while in the U.S. under our immigration laws. Moreover, filing for asylum due to fear of persecution on account of a country’s treatment of gay, lesbian or transgender status is very, very difficult. It depends largely on the credibility of the applicant, the conditions in the home country, the availability of corroborating evidence, and the idiosyncracies of individual judges, the Board of Immigration Appeals and the different federal Courts of Appeal if a case has to be litigated that far. In addition, if the applicant has PTSD or other medical or mental health problems stemming from the persecution, an asylum case can be incredibly burdensome emotionally and financially, especially over a long period of time.

Therefore, it is important that bi-national domestic partners and same-sex couples continue to contact Congress and the administration to advocate for relief from restrictive immigration laws to ensure family unity.