That’s because a U.S. citizen in a binational, heterosexual marriage can petition to get an immigrant visa for his or her spouse. In 2009, the law extended this benefit to the dead. If the U.S. spouse died, the pending immigration petition could still be approved. Congress did not want to add the hardship of an undefined immigration status to an already grieving spouse. USCIS said it this way: “For many years, some beneficiaries were left in immigration limbo upon the death of their qualifying relative. Families who had long planned to make the United States their home had few options and faced an uncertain future in the United States.”
Of course, that harsh reality continues for married, binational gay and lesbian couples, still alive.
These problems persist because of DOMA, the 1996 federal Defense of Marriage Act, which defines marriage as between a man and a woman. Since federal statutes govern U.S. immigration, legal same-sex marriages accord no rights under our immigration laws.
The Justice Department stopped defending DOMA in early 2011, calling it discriminatory and unconstitutional. But DOMA is still in effect, so USCIS denies benefits to homosexual married couples that it can grant to heterosexual married couples.
The Supreme Court will hear a DOMA challenge this term. The case does not involve immigration, but if DOMA is declared unconstitutional, USCIS will have no legal basis for discriminating against gay and lesbian married couples.
On another front, the Uniting American Families Act, a pending bill with bipartisan sponsorship, would amend the immigration laws to provide equal immigration rights and benefits based not just upon marriage but upon a “permanent partnership.”
So if you contact your congressional representative to support this legislation, you may want to bluntly point out that for now, gay and lesbian citizens have fewer rights than dead ones.
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