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DOMA and same-sex spouse deportation risk

Last week we began a discussion about the intersection between comprehensive immigration reform and the needs of same-sex couples. We noted that the Congressional Hispanic Caucus has cited reform of bi-national same-sex immigration as a primary principle for advocacy in the upcoming legislative session. However, current federal family-based immigration law may soon result in the deportation of an untold number of same-sex immigrant spouses currently residing in the United States.

The Defense of Marriage Act (DOMA) currently prohibits the federal government from recognizing same-sex marriage. As a result, same-sex spouses are not afforded the same treatment in terms of immigration policy as heterosexual couples are.

For example, if an American citizen marries an immigrant holding a valid visa, he or she could automatically sponsor his or her spouse for a green card upon the expiration of the original visa. However, a same-sex spouse becomes eligible not for a green card but for deportation upon the expiration of a valid visa.

When state law allows same-sex couples to marry but the federal government is prohibited from recognizing these kinds of unions, family-based immigration matters are made even more complicated than they already are.

The United States Supreme Court will soon be hearing two cases related to the constitutionality of DOMA. Hopefully the Court will honor the rights of married individuals of all orientations to be treated similarly under immigration law. But until the Supreme Court rules otherwise, bi-national same-sex spouses are at risk for deportation upon the expiration of their visas.

Source: Washington Post, "Federal marriage law may force deportation of many immigrant gay spouses," Pamela Constable, Dec. 29, 2012

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