Family-based immigration , where either a spouse or an immediate relative petitions for their loved one to adjust their status as a legal permanent resident, is arguably the most preferred method for immigrants to the United States. But not all couples can take advantage of this right. Even though there are now five states that recognize gay marriages- Massachusetts, Connecticut, Iowa, Vermont, Rhode Island- in addition to the District of Columbia; because immigration is a federal and not a state issue, and because the federal government only recognizes marriages between heterosexual couples, the right of having a U.S. citizen petition for their foreign-born spouse is not extended to same-sex couples.
According to the data by UCLA’s Williams Institute, there are estimated to be 25,000 gay couples in the US where one partner is foreign born. Of those, around 10-15,000 have children. And not one of those couples could depend on their spouse to obtain legal residency in this country because that right is reserved for a “special” category of marriages for which they do not qualify. And in a country where around 25% of the population- or at least every fifth person- is gay, the discriminative effects of the 1996 federal law- that defines marriage as being between a man and a woman- are palpable, to say the least. Of course, there are other avenues open for citizenship such as by applying for political asylum or green cards of their own; but if those were to fail, there is very little that could prevent their family member from being deported.
Not only is this disparate treatment of gay couples considered a denial of equal protections under law; this discriminatory policy encourages people in a similar position to deceive the U.S. Citizenship and Immigrations Services in an attempt to fraudulently marry a person of the opposite sex so that they may be granted the very rights they would lose by being honest and marrying for love. Truth be told- given the option of being pursued by ICE or of being detained and deported- almost everyone in their right mind would chose the former option even if it means lying to the federal government, since it is the lesser of two evils.
For the more than 20 nations- including Brazil, Germany, Israel, and Canada- that recognize same-sex relationships for immigration purposes, it may seem that the U.S. is regressing. Even though it houses some of the most homogeneous and culturally progressive cities in the world, like New York, San Francisco, and Miami; and although it was built as a nation that respects everyone’s right to freedom and their pursuit of happiness; it appears America still has to catch up with the new millennium and the better part of the developed world.