While many states have passed laws allowing same-sex marriages, the federal government still does not sanction them. This causes problems when it comes to immigration and deportation issues.
Typically under immigration law, a foreign national who is married to a United States citizen can file for "relative alien" status, which allows the foreign national spouse to be in the country legally
However, when a married same-sex couple tries to do the same, the application is turned down. This is because under the Defense of Marriage Act (DOMA), the government does not recognize same-sex marriages.
The Washington Post recently wrote about a Vermont couple's struggle to keep one partner in the United States after her student visa expired in July. Despite the fact that the woman and her partner were married under Vermont law in April 2011, she has been ordered to return to her native Japan.
The couple provided federal immigration authorities 600 pages of documentation showing that they are married, but they said that only one line mattered. It was the line stating that they were both women.
Sadly, many binational same-sex couples are in similar situations, even though they have been legally married in one of the states that recognize it.
Earlier this year, the Obama administration said that it would not uphold DOMA in federal courts, but immigration authorities are still abiding by the law.
However, some couples may find protection under the Department of Homeland Security's new "prosecutorial discretion" policy regarding deportations. Under the new policy, the DHS said that it would be focusing on deporting immigrants with a criminal record who pose a threat to national security.
This is why it is extremely important for binational same-sex couples facing deportation to consult an experienced immigration attorney. Depending on how the case is framed in immigration court, deportation may be avoidable.
Source: The Washington Post, "Deportation plans could split up married lesbian couple in Vermont," Dec. 22, 2011