The ImmiGRAtion Blog
LGBT Inclusion in Comprehensive Immigration Reform
By Grace Alano
Note to the reader: this interview took place before the Senate approved the comprehensive immigration reform bill without the amendment that would have allowed LGBT U.S. citizens to file immigrant visa petitions for same-sex spouses. Gay advocacy groups still endeavor to bring the amendment as a stand-alone bill, although it will likely be difficult to pass. Also, many are hoping that DOMA will be repealed and that the tide will continue to turn in favor of equality for all families. That is why we still want to get the story across.
There has been some controversy in the immigration community lately with regards to the inclusion of benefits for same-sex partners of U.S. citizens and permanent residents. Many feel that inclusion of LGBT rights in the Senate’s comprehensive immigration reform bill will, in effect, kill it. A colleague has written a wonderful op-ed in favor of LGBT inclusion, and I agree completely.
A source of inspiration and knowledge for LGBT activism in immigration is my colleague, Okan Sengun. I decided to interview him to get the latest news on what is happening with LGBT inclusion in comprehensive immigration reform and LGBT rights in immigration in general.
Hi Okan, can you tell us a little bit about yourself and your role as an activist for the LGBT community?
I was born and raised in Turkey and moved to the United States in 2008. When I first moved to San Francisco, I started volunteering at Under One Roof, a store benefiting HIV/AIDS organizations, in the Castro to get involved with the LGBT community. It helped me see the sense of community in San Francisco, which I didn’t have in my hometown. At U.C. Hastings, I also got involved in OUTLAW, a LGBT student organization. After the bar exam, I started working at an organization that assists LGBT refugees from the Middle East. Before that, I was not aware of issues such as honor killings and the death penalties of different countries for being gay, lesbian, bisexual, or transgender. That experience just opened my eyes. The same year I also worked at the Castro CBD (Community Benefit District), a small, local non-profit, where we provided information about the Castro and its history to visitors. That helped me learn more about Harvey Milk, the gay rights movement in the 70′s and 80′s as well as the AIDS epidemic. Now, I am a panel attorney at the AIDS Legal Referral Panel, which assists people living with HIV and AIDS with legal services. I also volunteer for the Lawyers Committee for Civil Rights. They have an amazing asylum program for LGBT immigrants, where they match pro bono attorneys with clients as well as the same attorneys with immigration mentors. This year, I also serve as the LGBT Coordinator of the American Immigration Lawyers Association (“AILA”) Northern California Chapter.
What I love the most about the community here is that the people here whether gay, straight, lesbian, bisexual, transgender, young, or old are very supportive for LGBT rights. And they are so accepting, which is different than my hometown. Since December 2011, I have been exclusively practicing immigration law and have been following up on CIR (Comprehensive Immigration Reform).
What is happening now with same sex-partnership and comprehensive immigration reform?
Under current immigration laws, same-sex binational couples cannot enjoy the same rights that heterosexual couples do. A U.S. citizen cannot apply for immigration benefits for his or her same-sex partner, even if they are legally married in a state that recognizes same-sex marriage. So there ends up being a lot of pressure on the U.S. citizen spouse, because he or she needs to choose between his or her country and partner. In most cases, U.S. citizens choose their partners and live in exile in other countries. There is a great book called “Torn Apart United by Love, Divided by Law” that shares stories of same-sex binational couples who are facing DOMA’s discrimination. The U.S. citizens have to sell their properties in the U.S., move to other countries and set up new lives just to be able to live with their partners. According to a survey done by UCLA in 2010, 35,000 individuals are adversely affected by the current discriminatory immigration laws. Half of these couples raise U.S. citizen children.
When the comprehensive immigration reform bill was first introduced by the bipartisan Gang of 8 on April 17, it didn’t include any protection for same-sex couples. Since then, immigrant advocates and immigration attorneys have been pushing for LGBT inclusion at events such as the National Day of Action in Washington, D.C., and raising their voices.
After the introduction of the Senate immigration bill, Senator Patrick Leahy, the Chair of the Senate Judiciary Committee, filed two proposed amendments to the bill that would benefit LGBT binational families. One amendment is to include the Uniting American Families Act (“UAFA”), which would allow permanent partners of U.S. citizens and lawful permanent residents to obtain lawful permanent resident status in the same manner as spouses of citizens and lawful permanent residents.
The second amendment was to recognize any marriage entered into in full compliance with the laws of the State or foreign country wherein such marriage was performed. So if you are married in Iowa or Massachusetts or anywhere it’s legal, your marriage is deemed valid for immigration purposes and the U.S. citizen spouse would be able to petition for his or her same-sex spouse for immigration benefits. I just hope that these amendments will make their way onto the immigration bill.
What about the Prop 8 and DOMA cases? What are your thoughts on them?
I believe the decisions in these two historic cases would benefit the LGBT community, which is great. However, I am not sure whether the LGBT immigrant community would benefit from any of the upcoming decisions. I do not think the Supreme Court would issue a broad ruling that would allow federal benefits to same-sex couples.
Therefore, we cannot completely depend on the U.S. Supreme court where there are five Republicans and four Democrats to render the decisions. That is why we have been advocating and calling the senators to push for the LGBT inclusion.
The U.S. Supreme Court most probably will rule on these two cases toward the end of this June, which is generally known as PRIDE month. This year AILA Northern California is marching in the San Francisco Pride parade, which is on Sunday, June 30th, to show the immigration attorneys’ support for the LGBT community. This year is especially important because of all that is going on.
What do you hope can be accomplished in politics and society in the next few years with regards to LGBT rights?
After Senator Leahy’s filing of the two amendments, the Republican senators in the Gang of 8 said that if there is LGBT inclusion, they will not support the bill anymore. They used the term “killing the bill” and believe that such an inclusion will, in fact, kill the bill, even though President Obama is supportive of LGBT inclusion in the bill. President Obama also said that he would sign any immigration bill, whether or not it includes relief for same-sex families.
I strongly believe that all U.S. citizens should be treated equally under the immigration laws and regulations. Same sex families should be able to stay together, and U.S. citizens shouldn’t be forced to choose between their countries and families and their partners. The best case scenario is that the UAFA will become law in this country.
What can people do to help?
For the last couple of weeks, we have been calling Dianne Feinstein’s office everyday, telling her [staff] that we as AILA Northern California strongly urge Senator Feinstein to support the LGBT inclusion and to garner her support for same-sex families. Everyone should call their senators and tell them to support same-sex families. Telling stories of clients, or friends is also very effective. Immigration attorneys can have their clients contact their senators. The senators’ offices are very responsive and it only takes couple of minutes to tell them your message.
I learned to be vocal in this country. It’s important to raise your voice and inform others. Let your friends and family know what’s going on and what they can do to make the change in our society.
Okan Sengun is an immigration attorney at Owji Law Group. He can be reached at firstname.lastname@example.org or at 415-693-9583.
Throwback Thursday – It’s a Small World
by Grace Alano
I grew up in Los Angeles and went to Disneyland often, so this video brings back fond memories. I also plan to take my daughter there for the first time this summer.
This video is 14 minutes long, so play it on your downtime or as background music while you surf the web. But it does go through the entire ride.
Which countries can you spot? If you were you born outside of the U.S., do you see your country? If you are a native born American like me, can you spot the countries your parents are from? Or your grandparents or great-great grandparents? Or your ancestors if your family immigrated centuries ago? Or did you love the cowboy and Native American?
Which are your favorites? I have to say, I have always loved the Hawaii/Oceana part, complete with the little Filipina doll.
Senate Comprehensive Immigration Reform Bill Key Provisions
by Grace Alano
News agencies are revealing an advanced memo of the bipartisan group of Senator’s comprehensive immigration reform bill. THIS IS NOT THE BILL! THE BILL WILL BE HUNDREDS OF PAGES LONG AND IS NOT PUBLIC YET! Here are some possible key provisions being reported in the press:
- The cut-off date for those applying for Registered Provisional Immigrant Status (RPI) is December 31, 2011. Undocumented immigrants without serious criminal convictions have one year – which may be extended – to apply for RPI.
- An applicant’s spouse and children can be sponsored at the same time. There is no provision yet for same-sex couples.
- Those in RPI status may become eligible to apply for permanent resident status after 10 years, showing they have worked regularly, paid taxes, learned English and Civics. They must also pay a $100 penalty. After three years they may apply for citizenship.
- DREAMers may apply for residence in five years.
- Undocumented farm workers will become eligible for an agricultural card. They must pay taxes and a $400 fine. Their spouses and minor children can get derivative status.
- This was interesting to see: “The bill addresses the issue of families who have been separated through deportation. Undocumented immigrants who had been deported for non-criminal reasons but who had been in the U.S. before the end of 2011 can reapply to re-enter and apply for RPI status, if they are the spouse of or parent to a child who is a U.S. citizen or legal resident, or a Dreamer eligible for the DREAM Act.”
- The sibling of U.S. citizens category will be eliminated, but I am assuming that those who have already been petitioned will be grandfathered in.
- Adult children of U.S. citizens who are married and over 31 years old will also be eliminated.
- The “immediate relative” category, where a visa number is always available, will also have a change, but I am unclear what it is from the article.
- Those with doctorates in the science, math, engineering and technology (STEM) fields, will be exempted from annual visa limits, as well as qualified physicians and multi-national managers and executives.
- There will be a new startup visa for entrepreneurs.
- There will be a merit-based program with points for education and employment.
- The cap will increase to 110,000 for H1-B visas.
How Can Comprehensive Immigration Reform Affect Me?
This week, the Senate is likely to introduce the comprehensive immigration reform bill. This post focuses on probationary legal status and visas for low-skilled workers, as those are two of the areas of comprehensive immigration reform that are the most fleshed-out so far. A discussion of how immigration reform will impact high-skilled workers and entrepreneurs will be in another post once there are more details.
PROBATIONARY LEGAL STATUS
The Senate Bipartisan Framework for Comprehensive Immigration Reform provides that the government will require people to initially register with them. The process will include passing a background check and paying a fine and back taxes, in order to earn probationary legal status. It is unclear what the amount of the fine will be. Probationary legal status will allow people who register to live and work legally in the United States. People with criminal backgrounds should consult with an attorney before attempting to apply, as the Bipartisan Framework has made clear that those with serious criminal backgrounds will be placed in deportation proceedings. Those in probationary legal status will not be able to access federal public benefits.
Individuals with probationary legal status “will be required to go to the back of the line of prospective immigrants, pass an additional background check, pay taxes, learn English and civics, demonstrate a history of work in the United States, and current employment, among other requirements, in order to earn the opportunity to apply for lawful permanent residency. Those individuals who successfully complete these requirements can eventually earn a green card.” Specifically, the senators have agreed to a 13-year path to citizenship. It would take 10 years for those in probationary legal status to get a green card, and then another three years to gain citizenship.
“DREAMers” – children brought into the U.S. when very young – and agricultural workers, will not have to wait in the same line – theirs will be shorter. The rationale is that as young children, they did not have the mental capacity to commit immigration violations. With regards to farm workers, there is a shortage of native-born U.S. workers who are willing and able to do farm work. Farm workers may be able to apply for resident status after five years.
What is unclear at this point is how people who do not have criminal convictions, but may have previously misrepresented themselves or committed some kind of fraud, may fare. Will it be possible for them to apply for probationary legal status, but 10 years down the line be unable to apply for residency? Will those people be able to apply for fraud waivers? These are still unanswered questions.
GUEST WORKER PROGRAM
There will be a new “W” visa for workers doing low-skill jobs. The W visa would affect housekeepers, landscapers, caregivers, retail workers and some construction workers. The visa program may possibly launch in April 2015. The number of visas issued would never go below 20,000 per year and could rise as high as 200,000 annually, depending on employment levels. In other words, they would rise and fall with the economy. One third of the visas would be reserved for businesses that employ fewer than 25 people, while no more than 15,000 visas per year would go to construction workers. The petition/application process is still unclear.