Integrity Legal

5th November 2010

As the recent mid-term elections dealt something of a blow to the Democrats in the United States Senate and a significant setback for said party in the United States House of Representatives many are pondering the future of legislation such as UAFA (Uniting American Families Act). Those unfamiliar with LGBT Immigration issues should note that under the Defense of Marriage Act (DOMA), same-sex bi-national couples are not permitted equal access to US family visa benefits even in cases where the same sex couple has legally solemnized a marriage within a jurisdiction of the USA. Due to the fact that bi-national LGBT couples still cannot receive equal immigration rights compared to their different-sex counterparts many couples are left separated from their loved one(s), sometimes by great distances. Other websites are noticeably vocal about their opinions regarding the future of UAFA, the past strategies utilized by LGBT Immigration Rights activists, and the future tactics that may be employed in the quest to see bi-national same-sex couples receive the same immigration benefits as different-sex couples. To quote directly from the website lezgetreal.com:

The Uniting American Families Act was introduced into Congress during January of 2009, by Rep. Jerold Nadler, D, NY.  Since that time there have been more co-sponsors than any other LGBT equality legislation on record.  Yet instead of pursuing UAFA as a stand alone Bill – with the fervor and impetus provided by the June 03, 2009 hearings in the Senate Judiciary Committee, Rachel Tiven, of Immigration Equality turned its limited resources to Immigration Reform and has spent the past 18 months chasing Comprehensive Immigration Reform for the longest time when it did not even exist. Now we have been included in the Menendez Senate version – but so what? Who in heavens name imagines Immigration Reform with Amnesty in it passing through the new Congress? And it is way to complicated and far behind to get through during the lame duck. I assure you of that!

The aforementioned website is often quite vocal in its support for LGBT Immigration rights. It would seem that some feel as though UAFA should not necessarily be pursued within the context of a broader Comprehensive Immigration Reform bill. This is likely due to the fact that Immigration reform remains a very controversial issue and some LGBT-rights advocates feel that pursuing a unilateral strategy of seeking equal equal rights for same-sex bi-national couples outside of Comprehensive Immigration Reform (CIR) would be more effective than trying to pass CIR with UAFA-like language included since CIR may not pass at all. Bearing this in mind the reader should note that the website ImmigrationEquality.org made a clarification regarding their overall strategy for securing equal rights for same sex bi-national couples:

Our philosophy has always been the same. We will pursue every available option for ending discrimination against our families. When we opened our Washington, D.C., office last year, we were clear: When it comes to passing UAFA, we mean business. Since then, our policy team has been working around the clock on a strategy that builds support for UAFA either as a stand-alone bill, or as part of comprehensive immigration reform. If Congress tackles comprehensive legislation – and it offers the first opportunity to win – we want to be part of that bill. And if the political reality becomes one that presents an opportunity to pass UAFA on its own, we want to be prepared to seize that opportunity as well.

It will be interesting to see what will happen to UAFA in the upcoming “lame duck” legislative session. There are some who would argue that a “lame duck” Democratic Congressional session is the perfect environment for pursuing UAFA as a stand alone piece of legislation since there are presumably still many supporters of such a policy on Capitol Hill who may have little to lose politically by supporting such legislation. As the future of UAFA has yet to be determined, but the plight of many same-sex bi-national couples remains untenable under the current circumstances.

It should also be noted that the US Congress is not the only forum in which this issue may ultimately be decided as the US Courts, and possibly the United States Supreme Court may be the body that ends up adjudicating this issue since the lower Courts’ hearing of cases challenging the Constitutionality of the Defense of Marriage Act (DOMA).

For related information please see: Same Sex Visa or K1 visa.


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