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The U.S. Is Becoming a Friendlier Place for Gay Residents -- Unless They're Immigrants

Even in the states where same-sex marriage is legal, same-sex spouses of U.S. citizens are not eligible for green cards because of the Defense of Marriage Act.

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"Once a man and woman get married, they get 1,138 federal rights. And Karin and I get very few of them. The ones that we want most now are my rights to sponsor my spouse for immigration, and we can't get them," said Rickard. Bogliolo's green card application was rejected in 2009. The couple got married in Vermont last year and filed another application but they are almost certain it will be denied again.

In some cases, even when governments and lawmakers at the state and county levels are sympathetic with binational same-sex couples, their hands are tied because immigration rights are federal benefits.

Dummerston, Vermont passed a resolution two weeks ago urging the federal government to allow Takako Ueda to stay in the town with her wife, Frances Herbert. Ueda, a Japanese national who was on a student visa for years, is now facing deportation. Dummerston's congressional delegation also wrote a letter in support of the couple's appeal. However, neither the town's Selected Board nor the congressional delegation has the legal power to grant Ueda immigration relief directly.

At the federal level, the Department of Homeland Security announced in November of last year that a " working group" including an LGBT liaison had been formed to review pending deportation cases, identifying and closing "low priority" cases in the process. A gay couple in New Jersey and a lesbian couple in New York were relieved from deportation by the DHS last year.

Last month, with the help of Sen. Charles Schumer, Sen. Kirsten Gillibrand and Rep. Tim Bishop, Tim Smulian, a native South African, was granted a one-year reprieve to stay in the U.S. to take care of his HIV-positive husband, Edwin Blesch, in their home in New York. With support from Rep. Nancy Pelosi, Anthony Makk, an Australian national who was facing deportation, was granted a two-year deferred action in January from the DHS and is able stay with his husband, Bradford Wells, in San Francisco.

However, according to Ralls, these relieves are very rare -- Makk and Wells are the first gay couple who were granted a deferred action -- and all are temporary solutions. For same-sex binational couples, as long as discriminatory immigration laws stay the same, they will not have the permanent immigration options that heterosexual binational couples have. When their visas expire, they may have no legal recourse to stay with their loved ones, even if DOMA is repealed in the future.

'My Family, Together'

So, what work is ahead for LGBTQ immigrants and activists? Immigration Equality is currently working with members of Congress on an amendment to the Immigration and Nationality Act (INA) and the  Uniting American Families Act (UAFA).

UAFA has been introduced to both the House and the Senate open up permanent immigration options for LGBTQ immigrants. It simply inserts the phrase "or permanent partnership" after "marriage" in the paragraph that stipulates eligibility of green card petitions, the term "permanent partner" in section 101(a) of INA, and adds the definitions of "permanent partner" and "permanent partnership" to section 101(a). Because these definitions do not require the parties of the permanent partnerships to be of the opposite sex, UAFA, if passed, will allow U.S. citizens to petition for the green card on behalf of their same-sex permanent partners as well.

According to Ralls, UAFA is "very carefully crafted not to run afoul with DOMA." It does not recognize gay and lesbian partners as "married spouses," but, said Ralls, "by simply amending and including a definition, the members of Congress who wrote the legislation believe that it could actually implement it even if DOMA is not repealed."

 
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