CHICAGO – When the Supreme Court Wednesday struck down the Defense of Marriage Act (DOMA) they ruled that couples in same-sex marriages would be entitled to, among other Federal benefits, the same immigration rights as heterosexual couples.
U.S. citizens married to those of their own gender but of a different nationality will, with limited exceptions, be able to apply for a green card on behalf of their foreign-born spouse.
The 5-4 decision in United States v. Windsor, which found a critical section of 1996 law unconstitutional, has the potential to change the status and lives of the estimated 32,000 binational same-sex couples living in the U.S. and raising a total of 11,000 children.
For Pablo García and Santiago Ortíz this news arrives after a 22-year-wait. Garcia, who was born in Caracas, Venezuela, does not have legal status in this country. His husband and U.S. citizen Ortiz applied for a green card on his behalf, but was denied. After Wednesday they say they will try again.
“With my green card we’ll be able to enjoy our lives like any other family,” said García.
Only hours after the decision, the offices of Immigration Equality, a national organization representing and lobbying on behalf of LGBT immigrants, was already in contact with their clients and filling out green card applications.
Director of Communications Steve Ralls says that Immigration Equality has been in dialogue with the Obama administration and that he said that “Based on those conversations we believe that everything will go forward smoothly.”
A wish that a press statement by Secretary of Homeland Security Janet Napolitano from Wednesday repeated when it called for Federal agencies to “implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”
Green card applications for spouses in particular, they expect, will be “processed and approved immediately,” Ralls said.
According to Immigration Equality, a same-sex marriage performed in any state or foreign country that allows, even if the couple resides elsewhere, will be recognized as a valid marriage for a green card application.
The issues of immigration and gay marriage have collided more than once recently. Senator Patrick Leahy (D-VT) has introduced an amendment to the Senate’s current immigration bill that would have given same-sex couples the right to apply for a visa or green card.
The amendment was immediately contentious. Republicans called it a “poisoned pill” and threatened to fold on their support for comprehensive immigration reform. Democrats meanwhile were afraid to vote yes and doom the bill’s chances of passing the Senate, much less the House.
On Wednesday Leahy, saying his amendment’s purpose had been accomplished by the Windsor case, withdrew it, and by doing so removed one last hurdle for the bill’s passage.
Ralls believes that the most important effect of the Court’s decision, which he described as the biggest event in his organization’s nearly 20 years of history, will be the peace of mind it gives.
“Couples who are here in the United States can rest easy that they will not be separated,” said Ralls.
For some undocumented marriages, gay or straight, the process is more complicated. Spouses that did not pass through a valid entry point when arriving in the country must, before attempting to adjust their status, leave the country and risk being barred from returning for a number of years.
García will not be obligated to leave before filing for a green card since he arrived in New York in 1991 through a valid entry point. As a biography by Immigration Equality describes, García was living with and taking care of Ortíz, who is HIV-positive, when the day came that his Visa expired. Unwilling to abandoned his partner during his time of need, he decided to remain past his legal stay. The couple entered a domestic partnership in 1993 and married in 2011 in Connecticut.
Shedding his undocumented status would give García the opportunity recoup the opportunities he had lost when he became undocumented: the ability to work full time and to return to his homeland for the first time in 22 years and see his ailing mother.
According to his husband, no one else would be more serving of it. “He has been there for me for all these twenty-two-years where he has been supporting my in my sickness and in my health,” said Ortíz. “It’s just the right thing. It was like Karma.”