Immigration reform and the complexities for same-sex binational couples

By Melanie Nathan, February 07, 2013.

The Tan Mercaso's in Parade

Shirley Tan and Jay Mercado in SF Pride Parade, Photo: Kathy Drasky

The Defense of Marriage Act  (DOMA) defines marriage as between a man and woman only, and so a same-sex American spouse (citizen or resident) cannot petition for a foreign spouse to obtain a green card and citizenship.   That means that married same-sex couples cannot benefit from the same Federal immigration laws that heterosexuals couples can.

The comprehensive immigration reform (CIR) debate has just started to gain steam with a distinct conflict between two versions of the current guideline plans. The first plan was presented by a bipartisan group of Senators who knowingly excluded same-gender binational couples from the reform, by simply not mentioning them, in essence denying them relief they need to secure parity under the immigration law.  President Obama presented a second plan, where he mentions that same-gender couples must be included in Immigration reform. However reconciling the two is not the only problem. Bi-national same-sex couples have unique considerations, which makes the case for the danger of a mere scanty mention of inclusion and sets the stage for many questions, most of which have yet to be asked in the media or by LGBT advocates.

The Senators’ exclusion of binational same-sex couples is of great concern, but what makes matters worse is that in our attempts to be included, we are faced with complexities and issues which are not out there in the public debate and hence I wonder who is really pitching for us in a truly fully inclusive fashion?  Have all our considerations been taken into account?

It is not enough to fight for basic inclusion, which for lack of transparency by our (self appointed) advocates, seems to be the only case made publicly at this time.  We must fight for both separate and extensive inclusion that remedies all the hardships that bi-national same-sex couples have had to endure through decades of inequality.

What I am saying is it is simply not enough to say “LGBT same-sex couples” must be included in comprehensive immigration reform. And furthermore if we are simply included in the plans as they stand now, we will be doing the bi-national community a great disservice as many of their specific needs will not be taken into account and they will end up suffering the prejudice that an otherwise stand alone bill would have remedied. In effect binational same-gender couples will be losing to “immigration reform” by being caught up in the basics that do not apply to them. Same-sex couples need special considerations and I do not see our leadership asking for it.

So it is my contention that one of two things must happen – either the Uniting American Families Act (UAFA) must be appended to Comprehensive Immigration reform (CIR) in its entirety with added considerations, or it must be pursued as a stand-alone equality bill, with remedies for the awful injustice suffered by same-sex couples.

Anyone who has remained in this country undocumented will be subject to the  remedies as applied to the 11 million undocumented immigrants in the new immigration proposals, which includes some punitive measures such as fines and going to the back of the line, with some exceptions.   However spouses of gay partners ought to be in a different category, because of the inequity of lack of parity under the law, and so should be given separate and abundant relief. And Immigration reform does not remedy marriage inequality.

Allow me to explain:

Including same-sex couples in an evasive and unclear plan is extremely dangerous.   I applaud Congressman Jerold Nadler  for reintroducing the much tossed about Uniting American Families Act (UAFA) back into Congress this past week.   The question is how will this legislation be utilized?  Should it be a stand alone bill or would it be appended to Comprehensive Immigration reform (CIR) and if same-gender couples are included specifically in CIR what should that entail?

While it is all very well to say same-sex couples must be included in Comprehensive Immigration Reform, it is imperative to understand the nuances of the binational same-gender couple dilemma and experience.  In doing so one must first understand the genesis of the fight and the pain that binational couples have continued to endure for decades.

The current Uniting American Families Act has now been introduced into Congress for the third time and prior to that its content was housed in The Permanent Partners Immigration Act.

In the 2008 Congress UAFA received a great deal of traction and it was headed toward a lame duck session and may have seen passage had advocates done their job.  The Democrats had the majority in the House and Senate as well as Barack Obama in the Presidency and it should have been pursued. But it was not pursued by the gay rights group Immigration Equality, which calls itself the preeminent immigration equality group.

In June 03, 2009 we saw a turning point, as the Senate Judiciary Committee had just held a hearing where lesbian mother Shirley Tan testified as well as Julian Bonds from the NAACP, making an astoundingly compelling case for the passage of the legislation; but it went no further. Instead or pursuing the hard core advocacy it required for the home run, Immigration Equality, the self appointed leading organization on the issue, jumped ship the very day after the UAFA hearings.

The hearing was led by Sen. Patrick Leahy, the Democrat from Vermont and Senator Chuck Schumer, who happens to lead the Bipartisan group which now rejected same-sex couples, and who at that time promised his support for UAFA.

What happened on June 04, 2009 reflects an unconscionable mistake in strategy.  Immigration Equality ditched UAFA the very day after its heightened opportunity for advocacy, and decided to go down the path of comprehensive immigration reform (CIR) instead.

Of course UAFA as a standalone was no slam-dunk and it needed a lot of work.  Yet, we had reached a critical and unprecedented height in the struggle, after decades of fighting.  All we needed was that final push.  Perhaps a good analogy – imagine climbing MT. Everest and with about one hour before reaching the peak, straight ahead, on a clear day,  deciding to walk downhill to another path that would take 12 extra hours to reach the same peak, knowing a severe storm was due in a matter of hours?  Immigration Equality did not climb to the peak, instead they veered off path and turned onto one fraught with known dangers. They abandoned the equality route and took the immigration path.

Melanie Nathan, Jay Mercado, Joriene, Jashley, Shirley Tan

Tan family with Melanie Nathan at UAFA hearing in 2009

melanie Tan boys

Senator Leahy with Tan Twins after UAFA hearing

JAshley with senator leahy after the hearing

Jashley Tan- Mercado with Senator Leahy after the hearing

This was at a time when we had DADT repealed showing that equality legislation was indeed attainable at the time, at least if the work had been properly done and the strategy adhered to. Not a single one of our LGBT organizations pursued the incredible outcome of the UAFA hearing in the manner that should have occurred and none attempted to head to that final post as it should have been at that time. And in fact when it came to the lame duck session Immigration Equality took on advocating for Dreamers as a separate Bill at the expense of the bi-national UAFA, leaving it in the lurch, like a broken train, without rails.

It would seem that all the other LGBT organizations including Human Rights Campaign, did nothing to challenge the obviously suicidal path.

Nothing happened – UAFA, with all its mechanics in order and which could have gone full steam ahead was abandoned as if a broken train, while Comprehensive Immigration reform went absolutely nowhere, and then to add insult to injury when CIR saw its current rebirth a couple of weeks ago, the very Senator that promised us UAFA back in 2009, left us out of his plan, in a deal to appease conservatives.

The Immigration Equality strategy had yielded its inevitable sitting duck – the gays – to be used as pawns, easily dispensable in this negotiation, and despite having warned Immigration Equality of the likelihood of this scenario they steamed ahead on board the new CIR train and left UAFA flailing behind.

Today, according to the Blade, Rachel Tiven, Executive Director of Immigration equality,  was the only LGBT representative invited to take part in White House talks on comprehensive reform. It was she who had jumped train and now she has much credibility on the line with a huge personal investment in CIR including bi-national same-sex couples.  The question is will Tiven and any other LGBT advocates actually tell us what they are doing?  What are they asking for?  Are they asking for all the particular nuances of UAFA?

Is Tiven asking for immigration or is she asking for equality?

The Blade reported that “President Obama held two separate meetings at the White House on Tuesday to encourage support for his vision for comprehensive immigration reform, which includes — as laid out last week in his plan — a provision that would enable gay Americans to sponsor a same-sex foreign partner for residency in the United States. The meeting in the morning was with 16 immigration and progressive groups, such as the AFL-CIO, the Center for American Progress, the National Council of la Raza, the National Immigration Forum; the meeting in the afternoon was with 12 business leaders, such as the Goldman Sachs Group, Yahoo!, Deloitte LLP, and the Coca-Cola company. Rachel Tiven, executive director of Immigration Equality, was among those who participated in the meeting with progressive groups and was the sole LGBT group at the table.”

Now Tiven is desperately trying to get a nod for the inclusion of same-sex couples and that will not be enough and may actually be dangerous, unless UAFA is fully included and if it is not then it must be pursued as a stand alone bill. And we are back to pre-2009,  square one, perhaps with a little added awareness.   Perhaps we would be better off if we went back to asking for UAFA as a stand alone Bill and not as part of CIR.  Unless the terms of UAFA are fully included completely in the Comprehensive Immigration reform plan, bi-national gay and lesbian couples will not see true equality and it seems difficult enough just getting a mention at this time, noting further that same-sex couples seems to be nothing more than a predictable opportunity for Republican anti-immigrant ‘scapegoating’.

Same-gender bi-national plight is not the same as the plight of other undocumented immigrants.

First and foremost it is important to understand that the same-sex bi-national plight is not the same as the plight of other undocumented immigrants. There is one huge difference and that is the question of equality. Same-sex couples are faced not with an immigration issue, but rather an equality issue.  Had one partner been of the opposite sex, the foreign partner would not be “illegal” and would probably be documented.  Accordingly it is absolutely an entirely different legal remedy that we seek to right the wrong and CIR as we see it under both the President’s plan and the Senators’ plan, does nothing at all to indicate any detailed provisions that could specifically take care of these nuances under which bi-national same sex couples have found their suffering.

These are important points to keep in mind when speaking about bi-national same-sex couples:-

These are my points (not exhaustive) for consideration for bi-national same-sex couples, where the current guideline for immigration reform offers little or no relief, whether the Obama or the Senator plan. In fact even UAFA does not cover all the repercussions:-

1. Some bi-national couples have been able to marry and others have not:  Even if included in immigration reform, if you live in a State where you cannot marry, you would have to travel to a State where you can, denoting marriage inequality; this defies the argument of some Republicans who assert we ought to leave marriage to the States to decide, as many will not have access to the federal immigration laws, which are not governed by the States.  If these couples could not afford to travel to another state to marry, they would not have any immigration rights under the Federal law, unless UAFA were enacted which includes “permanent partners” and hence covers the inequity in same-sex marriage laws.

2. Marriage for same-sex couples who are separated by borders:
CIR as we have seen this does not address this issue.  These couples that cannot marry may enjoy a separate status known as “permanent partner” status as defined by UAFA and the question is can one be considered a permanent partner if one has conducted a long distance relationship over a period of many years.   This needs clearing up even under the current version of UAFA, where creating a non-marital legal nexus still requires further definition.  Some of these partners have been denied entry into the U.S.A.  Hence you have couples who have not been able to travel or see each other in years.  The only way to help these couples is to ensure special visas or at least provide Fiancé Visas, similar to the ones that are there for heterosexual couples, with definitions that work to assist same-sex couples.  If they have a Fiancé Visas, they will have six months to find a place to marry in the U.S.A., unless Permanent Partner is defined to include this via UAFA.

3. Couples in Exile – Couples who had to leave the U.S.A. to be together should have a special fast track process to return to the U.S.A. with their spouses / partners and this could occur through family reunification programs as long as gays are specifically mentioned.  (See

4. Unmarried where foreign partner is living in the U.S.A “illegally”: Because of fear of authorities finding out and detention followed by deportation, some are in U.S.A. and never married even though they could have in a State allowing such. Some of these couples were advised by Immigration Equality and other attorneys not to risk marriage, for fear of being caught.  They need permanent partner status or a way to come out of the shadows without having to pay a fine or having to get to the back of the line.  Had these couples been treated equally under the law they would not be in this position and #5, below also applies.

5. Married ( or DP) couples where foreign partner is living in the U.S.A “illegally”:- Same-sex couples who have been denied parity under the law should not be included in any of the punitive measures that other undocumented immigrants will be subjected to, because they were denied equal treatment under the law and but for the already ruled unconstitutional DOMA, would not be falling into this “illegal” status. They should be allowed a fast track to immigration based on equality based remedial legislation and if it is going to be called “immigration reform” then there should be a special category for same-sex couples. Here is an example where UAFA can present immediate relief as long as the foreign partner is not penalized for an “illegal” status.

All of this indicates the vast difference between the bi-national same-sex couple plight being considered an equality issue compared to an immigration issue and tacking such on to CIR muddies the very clear water that UAFA had established.

Gay couples  who are not married or unable to marry will have to prove a binding nexus, a committed relationship, and there must be special rules created to accommodate this scenario in circumstances where marriage to date has not been possible for some couples.

It cannot be stressed enough that there are other considerations that have resulted from this inequality, because gay and lesbian couples have been discriminated against, which makes the bi-national issue an equality issue that requires its own form of legal remedy and denotes clearly that it is not a mere immigration issue.

Under immigration law, the immigrant has a privilege (not a right) while the American (straight spouse) has a right – the “right to petition for their foreign spouse,” the latter having been denied to gay Americans.  The right to sponsor a foreign partner has been reserved for heterosexuals only and that is what needs to be remedied. It is unlike the undocumented 11 million immigrants who were never denied parity.

The 11 million are in need of reform to rectify their undocumented status based on the manner in which they did not attain legal status – they over stayed visas or entered illegally. However although the gay couples may have similar status on similar basis, they were denied the option that the other 11 million may have qualified for and that was the ability for an American spouse to petition for them through the marital relationship.   The heterosexual undocumented immigrants had the ability to be documented legally had they fallen into that category.

Do not be fooled into thinking that the repeal of DOMA or a SCOTUS ruling of it being unconstitutional provides bi-national same-sex couples with the full relief they need.  It does not for many of the reasons stated above. Also do not be fooled by the 20-year-old statistic that there are only 35,000 binational couples. The latter is a number tallied long before social media impacted how we met and fell in love.

There needs to be special protections for binational gay partners who are already “illegally” in the USA to ensure that they are not deported. They also should not have to pay fines because they have been denied a right that straight people have had. So they should not be penalized for the inequality in the same way as he 11 million undocumented immigrants. Hence UAFA is imperative.

So you can see this is not a simple “include the gays” story. It is much more complex. Our so called advocates, especially the ones who have taken charge of the issue,  have yet to tell us exactly what it is they are doing.  To date their strategy has failed us and trust has been breached in the community.

What are we actually asking for when we ask to be included in Comprehensive Immigration reform? Is that really still the best route for same-sex bi-nationals? Will it include all the considerations discussed above?  Should UAFA be a standalone bill only?  Will a mere mention in CIR mean some of our needs end up being ignored? What does inclusion in CIR really mean to those advocating for binational same-sex couples at this time?

I think in each case bi-national couples must look at their particular circumstances, and what the strategy (if you can figure it out) means to you in particular and if you are unsure of where you stand, start asking the questions as to how the proposed law (whatever that may ultimately contain) will cover your particular circumstances.

If you want to read some History on the disgusting run around binational same-sex couples have been subjected to read more here – a few articles from 2010 – republished :

I suggest that if you are concerned about true equality for our same-sex binational couples you call and ask the following people all these questions and see how they respond.

Leadership who should have answers to these questions include and please feel free to report back tp me:-

Rachel Tiven / Julie Kruse at Immigration Equality

Rea Carey at The Task Force

Chad Griffin at HRC

Kate Kendell at NCLR

Amos Lim at Out4immigration –

John O’Connor at EQCA –

Love Exiles



Heather Cronk – GetEQUAL

REPS who should know what to answer:-

Rep. Jerold Nadler, New York

Rep. Chuck Schumer, New York

Rep. Mike Honda, San Jose

Sen. Patrick Leahy Vermont

Rep. Luis Gutierrez

Sen. Durbin

(Note I have purposely used bi-national and binational spellings )

SF Pride Shirley Tan, Melanie, Jay Mercado, Jorr and Jash

SF Pride Shirley Tan, Melanie, Jay Mercado, Jorr and Jash

Melanie and the Tan Family

Melanie Nathan and the Tan – Mercado Family at SF Pride

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