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Gay couples and immigration

May 23, 2011 By Joy Rosenthal

We all know that an immigrant who marries a US Citizen can get Legal Permanent Resident status, commonly known as a green card.–  But what if the spouses are the same sex?

Same sex marriage is legally recognized in a few states, yet not by the federal government.  Congress passed the Defense of Marriage Act (DOMA) during the Clinton years specifically stating that they will only recognize marriage between a man and a woman.

This puts same-sex married couples in a weird double status.  They have rights according to State law, but not according to Federal law.  That means that they still cannot file federal taxes together, claim veteran’s or social security benefits or others of hundreds of benefits recognized by the federal government.  There are over 1,100 federal benefits available to heterosexual married couples that are not available to same sex spouses.  (see Marriage Equality)

And yet this seems to be illegal.  The Equal Protection Clause of the 14th Amendment to the US Constitution states that “no State shall … deny to any person within its jurisdiction the equal protection of the laws,” which has been interpreted by the Supreme Court to state that the government cannot discriminate on the basis of an inherited characteristic, such as race or sex.

There were several large lawsuits brought last year saying that DOMA was unconstitutional, because it is federally supported discrimination against gender, in violation of the 14th Amendment. Recently, Attorney General Eric Holder  and President Obama declared that the US Justice Dept. was no longer going to prosecute cases under DOMA because they recognize that DOMA is unconstitutional.

Last month, Sen. Kirsten Gillibrand (D-NY) and 11 other senators wrote a letter to Attorney General Eric Holder asking the Obama administration to stop the deportation of gay immigrant spouses.  See the Advocate’s interview with Sen Gillibrand here.

One of the best organizations fighting for Immigration Equality is – well Immigration Equality.  Click on the link to find out more.

Right now, it appears that my spouse is a man, I could sponsor him to get a green card.  But if my spouse is a woman, I cannot.

Filed Under: Cultural Competence, LGBT, Marriage, Travel Tagged With: family, immigration, inclusivity, law, LGBT, marriage

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Rosenthal Law & Mediation
212.532.4704

Joy S. Rosenthal, Esq.
226 Prospect Park West #156
Brooklyn, NY 11215

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