Since Congress Won't Do It, The Supreme Court Could Help Gay Immigrants Stay In The US

Gay immigrant couple DOMA caseEdwin Blesch and Timothy Smulian are a bi-national couple who were part of a lawsuit challenging DOMA filed by Immigration Equality.

Photo: YouTube via Immigration Equality

Congress hasn’t included same-sex couples in its proposed immigration overhaul, but a huge Supreme Court case could help gay immigrants become citizens anyway.A bipartisan group of Senators recently introduced a plan for immigration reform, but omitted rights for binational gay couples so the measure would be more likely to pass.

The Supreme Court might offer hope for same-sex immigrant partners, though.

The high court will hear arguments in March in United States v. Windsor, a case that challenges the federal defence of Marriage Act. The court’s ruling on this case, which should arrive by June, is the┬ábest shot that foreign gay or lesbian partners might get to stay in the country legally.

DOMA’s Section 3 prohibits the federal government from recognising gay marriages when it comes to paying taxes or applying for green cards. It applies even when a couple has married in a state that legally recognises gay marriage, like Connecticut, New York, or Vermont.

The Obama administration has refused to defend DOMA in court.

But as long as it’s in place gay people who are married to non-citizens can’t petition for them to stay in the U.S. as straight married couples can, according to the Immigration Policy centre.

If the Supreme Court strikes down Section 3 of DOMA, federal immigration authorities will be able to recognise legal same-sex marriages and grant green cards to foreign spouses. There were roughly 28,500 gay and lesbian couples where one partner was not a citizen as of November 2011, according to a study by the Williams Institute, a think tank at UCLA Law School.

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