Time to Finish the Job on LGBT Immigration: U.S. v. Windsor, One Year On

Plaintiff of the US v. Windsor case challenging the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), 83-
Plaintiff of the US v. Windsor case challenging the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), 83-year-old lesbian widow Edie Windsor (C), greets same-sex marriage supporters as she leaves the Supreme Court on March 27, 2013 in Washington, DC. The US Supreme Court tackled same-sex unions for a second day Wednesday, hearing arguments for and against the 1996 US law defining marriage as between one man and one woman. After the nine justices mulled arguments on a California law outlawing gay marriage on Tuesday, they took up a challenge to the constitutionality of the federal Defense of Marriage Act (DOMA). The 1996 law prevents couples who have tied the knot in nine states -- where same-sex marriage is legal -- from enjoying the same federal rights as heterosexual couples. AFP PHOTO/Jewel Samad (Photo credit should read JEWEL SAMAD/AFP/Getty Images)

It's an anniversary. Should we celebrate?

One year ago this week the U.S. Supreme Court told Edie Windsor that her marriage to her wife Thea was just as good as any heterosexual marriage for the purposes of Federal estate tax, at least.

In a landmark decision, the Court struck down part of the so-called "Defense of Marriage Act," declaring that Federal discrimination against married, same-sex couples violates the Equal Protection clause of the Constitution. The immediate effect was that Edie could get the same estate tax exemption that applies when you inherit property from an opposite-sex spouse.

This was huge! It opened the door to lots of other Federal benefits, including immigration benefits for same-sex foreign partners. Fortunately, President Obama has supported and catalyzed these changes wherever possible.

Many of us American "love exiles" saw a light at the end of the tunnel. We had left the United States for friendlier shores years ago in order to live together with our foreign partners and children. Now we could come home together with our families. And for LGBT Americans living in the U.S. with a foreign husband or wife in irregular status, this was finally a chance to fix the problem without the threat of deportation and breakup of the family hanging ominously over their heads.

Sadly, for many couples the celebration was short lived. Despite the court's ruling, many binational couples still cannot legally stay together in America. Why? Because the discriminatory legal treatment we faced in the decades before U.S. v. Windsor haunts us still.

During the dark years before Windsor, marriage was illegal and green cards were unavailable. LGBT families did what they could in their struggles to stay together. In some cases, rules were broken. And U.S. immigration law contains some draconian penalties that can ban a spouse from re-entry for three, five or ten years -- or even a lifetime.

For example, a married same-sex couple I advised had lived in the U.S. for many years together. Years earlier the Dutch wife had overstayed a student visa. The problem dragged on and eventually the authorities initiated deportation proceedings against her. She fought to keep her young family together. Without her realizing it, the wheels of justice moved forward and this lady was technically "deported" even though she remained in the United States for some time thereafter. This blot on her record creates a real problem for her today.

In other cases, people have regrettably entered into questionable heterosexual marriages in a desperate effort to keep their LGBT families together. That is a terrible mistake with far-reaching consequences.

Even just overstaying a visa for significant amounts of time might create problems later.

The government tells us that LGBT Americans now have "equal treatment," because heterosexual people who committed these violations face the same penalties. But something is wrong with that. Heterosexuals always had the option to marry their U.S. partners and get a green card, so their histories are not nearly so painful as ours.

Unlike the mainstream population, the LGBT community has suffered from decades of discrimination during which we struggled to keep our families together, our children in school, to continue our careers, and to pay the mortgage. That discrimination created problems that continue today.

To be fair, the law is not entirely unforgiving. For some applicants, it is possible to apply for a "waiver" of the prior violations. For example, certain immigrants whose spouse or parent is a U.S. citizen or permanent resident can stay despite certain previous violations of the immigration law if they can demonstrate there would be "extreme hardship" to the U.S. spouse or parent. But "extreme hardship" is a high standard to reach. It certainly is not automatic and the government has discretion.

Without some form of special consideration to remedy past injustices, in effect the discrimination continues.

There are solutions, but they require the political will to act. For example, the immigration authorities could receive extra authority, where needed, to consider special circumstances and grant waivers.

We urgently need to give immigration officials the means to act consistently with one of America's core immigration policies -- keeping our families united. Let's be sure we have adequate provisions to cover all families, including same-sex spouses and their families who are suffering the ongoing effects of past discrimination.

Of course we should celebrate Edie Windsor's victory! It changed the legal landscape forever. But unless Congress and the administration take steps to ease the remaining barriers to LGBT family immigration, this joyous opportunity could turn out to be a pyrrhic victory, indeed.

One final disclaimer: The immigration rules are very complex. This article is not legal advice, as each case turns on its own particular facts. If you have questions, I urge you to consult a specialist lawyer and get good legal advice to determine the best way forward for you. And I wish you love and good luck.