Written testimony of HRC President Joe Solmonese on the Uniting American Families Act
To the Committee on Judiciary, U.S. Senate
June 3, 2009
Mr. Chairman and Members of the Committee:
My name is Joe Solmonese, and I am the President of the Human Rights Campaign, America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender (LGBT) equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all. On behalf of our over 750,000 members and supporters nationwide, I am honored to submit this statement in support of S. 424, the Uniting American Families Act of 2009.
The Uniting American Families Act
One of the fundamental principles of U.S. immigration law is the notion of family unification. That is why approximately 75 percent of the 1 million green cards or immigrant visas are issued to family members of U.S. citizens or permanent residents.
Tragically, lesbian and gay couples are not recognized as “families” under U.S. immigration law. Even if these bi-national couples have legally recognized marriages, civil unions or domestic partnerships in their home states, U.S. citizens still cannot sponsor their lesbian or gay partners for immigration. As a result, thousands of families are torn apart.
That is why the Uniting American Families Act is such a crucial piece of legislation. The Act will alleviate this burden by placing committed, lesbian and gay, bi-national couples on equal legal footing. The Act remedies the current injustice in our nation’s immigration laws by allowing U.S. citizens and permanent residents to sponsor their same-sex partners for family-based immigration.
I want to thank the Chairman for his leadership on this legislation and for holding this hearing today.
Why the Act is Needed
Our government’s failure to recognize lesbian and gay families for immigration purposes wreaks havoc on the lives of the American citizens who fall in love with non-citizens and the children who fear being deprived of one of their parents. Many are forced to leave family and friends, sell businesses and abandon the community and country they love in order to keep their families together. Families are forced to choose: separate or live in exile.
The effects of this injustice are all too real for thousands of Americans. The last census revealed that nearly 36,000 bi-national couples are affected by the inequality in our nation’s immigration laws. This injustice affects entire families; nearly 47% percent of bi-national couples are raising children.
Lesbian and gay Americans are often left with the heartbreaking choice of saying goodbye to their partners or immigrating with their partners to a country with more fair-minded immigration laws. Consider the following examples:
My partner and I have been together for 6 years, most of which have been spent going back and forth between the U.S. and Canada, my partner’s country of citizenship. Canada considers me a permanent resident because of the country’s recognition of my marriage to Lance.
Unfortunately, I cannot say the same about my home country. Even though we are registered domestic partners in the state of Washington, we have no federal protections, including immigration rights. Thankfully, Lance is able to spend much of his time with me in the U.S. because he owns his own company and has flexibility in where he can work. Still, he has to leave the U.S. every so often to stay within his legal boundaries as a “visitor” in the U.S.
I don’t want Lance to be a visitor any longer.
Chris Boone, Seattle, Washington
I am an Australian. My partner is American. In Australia, we are accepted and she can live there without hassles. Here [in the United States], I cannot. But my partner missed her family too much so we decided to return here. Unfortunately, although we have been married (in England) for five years, this means nothing to the American government. I cannot stay here; and, in fact, this last time in Los Angeles, I was grilled for more than seven hours as to my status in this country and told that I will not receive any further extensions to my visa after my six months are up. This is devastating to us and we really do not know what to do. … Why should we, as a couple, be forced to separate? We are not children – I am 50 and my partner is 53 – so why should we be treated as such? Our only way to live together now, as a couple, is for me to get sponsorship or a green card, for which we have been applying for the past five years. Unfortunately, Australia is not one that gets many of the successful lottery draws.
Jacki and Linda Fox, Fostoria, Ohio
These stories are but two of hundreds. And because immigration is regulated on the federal level, there is no recourse for couples like Jacki and Linda unless Congress acts. As a result, even couples who are legally married in a state such as Iowa cannot stay together under current law. Passing UAFA would provide a permanent solution for these families.
What the Act Would Do
The Uniting American Families Act applies the same standards to lesbian and gay couples that the U.S. applies to different-sex couples where one member is seeking to bring a foreign partner into the country. The Act creates a separate category of family for immigration purposes, a “permanent partner.” Under the measure, a permanent partner is any person 18 or older who is:
- in a committed, intimate relationship with another adult 18 or older in which both parties intend a lifelong commitment;
- financially interdependent with that other person;
- not married to, or in a permanent partnership with, anyone other than that other person; and
- unable to contract with that person in a marriage recognized under the Immigration and Nationality Act.
U.S. citizens and permanent residents could then sponsor their partners for family-based immigration purposes, in the same manner as heterosexual spouses.
The structure of the bill does not implicate or violate the Defense of Marriage Act (”DOMA”).[1] DOMA defines “marriage” and “spouse” to refer only to the union between a man and a woman. UAFA does not include same-sex partners in the definition of “spouse.” Instead, it creates another class of persons, permanent partners, who are eligible for federal sponsorship under federal immigration laws.
Further, the Act does not require Congress to address marriage at the federal level. The rights of permanent partners under the Act is limited to that of immigration and do not extend to the over one thousand federal benefits conferred on different-sex spouses. However, repeal of DOMA would solve the current inequity in our nation’s immigration laws and allow legally married lesbian and gay couples the right to stay together without fear. Although HRC strongly believes that Congress should take that step in separate legislation, this legislation does not do so.
Our nation’s laws should work to keep families together, not tear them apart. Currently five states recognize marriage equality for lesbian and gay families.[2] An additional six states and the District of Columbia have enacted some form of relationship recognition for lesbian and gaycouples.[3] State recognition is increasing at a dramatic pace and additional states are expected to recognize marriage equality in the near future.[4] Denying lawfully married couples the full rights and benefits of citizenship is discriminatory and hurts our nation’s families.
State and local governments as well as private employers have extended a variety of family-based benefits to same-sex couples. Currently, 16 states and over 200 local governments offer their public employees domestic partnership benefits. In growing numbers, employers across the country have also made the business decision to provide health benefits to domestic partners of their employees. Fifty-seven percent of Fortune 500 companies provide such coverage.
The HRC Foundation also tracks employers that provide Family and Medical Leave Act-type benefits to employees with same-sex domestic partners. As of January 1, 2008, the HRC Foundation was aware of 328 major corporations extending FMLA benefits to include leave on behalf of a same-sex partner. Currently, seven states and the District of Columbia include unmarried partners in state family and medical leave acts.[5]
HRC and our Congressional allies are working to pass legislation that reflects the steps already taken by many states and private employers. Several key pieces of legislation have been introduced that would extend family-based benefits to lesbian and gay couples. The ability to take time off to care for a sick partner or child is critical to ensuring families are able to care for each other. Expanding the FMLA to include same-sex couples is a necessary expansion of this law. Further, legislation has been introduced to end the taxation of benefits provided for domestic partners and other non-spouse beneficiaries under employers’ health plans. Also, the Domestic Partnership Benefits and Obligations Act (DPBO) would provide the same family benefits to lesbian and gay federal civilian employees as are already provided to employees with different-sex spouses.
As many corporations and state and local governments have realized, recognizing lesbian and gay families is a crucial part of acknowledging and protecting all families. Federal legislation has followed suit, and it is time for our immigration practices to reflect this progress.
Other nations have embraced equality for their lesbian and gay citizens as well. Not all of these countries have marriage equality, yet they still allow these couples to emigrate. Currently, the United States lags behind at least 19 countries that recognize same-sex couples for immigration purposes.[6] No country that has embraced immigration equality for same-sex couples has reported problems with fraud.
The Act Contains Strong Prohibitions against Immigration Fraud
Consistent with basic principles of U.S. immigration law, UAFA aims to unite families while retaining strong prohibitions against immigration fraud. As with current immigration laws for married couples, UAFA contains strict requirements for proof of the relations; imposes significant financial responsibilities and harsh penalties for fraud; and maintains long conditional residency requirements.
Contains Strict Proof Requirements
Bi-national, same-sex couples must establish that they are permanent partners under the same strict proof requirements in the INA that are required for spouses.[7] Individuals would be required to offer “clear and convincing” proof of a permanent partnership; this can include evidence of a civil union or marriage from a state with such recognition, sworn affidavits from friends and family, documentation of financial interdependence, and personal interviews. Officials from the U.S. Citizenship and Immigration Services (formerly the Immigration and Naturalization Service) would have the same ability as under the INA to investigate the details of permanent partners’ lives. Applicants for permanent partnership benefits would face the same rigorous “green card” interview as married couples. If the interviewer suspects fraud, the couple would be required to complete a second more rigorous interview in which the couple is questioned separately and the interviewer determines whether the answers are sufficiently consistent.
Imposes Significant Financial Obligations and Severe Fines
The UAFA mirrors the INA’s current requirement that an individual bringing his or her spouse to live in the U.S. must file an affidavit of support in which he or she accepts legal financial responsibility for the immigrating party. This legal responsibility lasts until the permanent partner becomes a U.S. citizen or until he or she can be credited with 40 quarters of work (about 10 years worth) in the U.S. If the immigrant partner accesses means-based benefits before fulfilling this requirement or becoming a U.S. citizen, the government can sue the sponsor. This legal financial commitment provides a strong deterrent against fraud.
The UAFA also subjects individuals to the same severe penalties for fraud that currently exist under U.S. immigration law. These penalties include criminal penalties of up to five years in prison and $250,000 in fines for the U.S. citizen, and deportation for the foreign partner.
Maintains Long Conditional Residency Requirements
The UAFA maintains the conditional residence provisions of existing U.S. immigration law. If a couple has been in a permanent partnership for less than two years, the immigrating partner becomes a conditional legal permanent resident (”LPR”) for two years. The partners must apply together at the end of that two-year period, and submit to an interview with an immigration official demonstrating that they remain in a permanent partnership, in order to lift the condition. Failure to timely apply for the condition to be lifted can result in the deportation of the foreign partner. This provides yet another deterrent against fraud.
The Time for Immigration Equality is Now
The UAFA is vitally important legislation to so many bi-national same-sex couples who are struggling to keep their families together because of this unjust policy. For too long Congress has ignored the heart-wrenching real-life consequences our nation’s immigration laws. Thousands of lesbian and gay couples live in constant fear of being stopped by officials who demand to see documentation and threaten detention, fines or deportation.
Support for this measure is strong and continues to grow. By the end of the last Congress, the bill had 118 cosponsors in the House, and 18 in the Senate. Additionally, the American public supports extending immigration equality to lesbian and gay couples. A July 2008 Feldman Group, Inc. survey found that 54% of Americans supported allowing a foreign-born same-sex partner of an American citizen to become a United States citizen.
Mr. Chairman, the time to pass this legislation is long overdue. As the tragic stories of separated couples show, the inequality in our current law tears families apart. We urge you to pass this legislation and give loving, committed lesbian and gay couples the right to keep their families together. No one should have to choose between their country and their family. Thank you again for holding this historic hearing, and thank you for your exceptional leadership on this legislation.
Footnotes:
[1] 1 U.S.C. § 7 (Lexis 2009).
[2] The states with marriage equality are Connecticut, Iowa, Maine, Massachusetts, and Vermont.
[3] The six states that have a statewide law providing the equivalent of state-level spousal rights to same-sex couples are California, Nevada, New Hampshire , New Jersey, Oregon, and Washington.
[4] In New Hampshire, a bill to provide marriage equality has passed both their House and Senate. The Legislature is currently working with the Governor to resolve differences in the bill.
[5] The following states under their respective state FMLAs extend benefits that include same-sex couples: California and the District of Columbia extend benefits to registered domestic partners; Connecticut, New Jersey and Vermont provide benefits to parties in a civil union; Hawaii provides benefits to reciprocal beneficiaries; Oregon and Rhode Island provide benefits to family members, including same-sex domestic partners; and New Mexico provides benefits to same-sex spouses as long as they were married out-of-state in a state that recognizes marriage for same-sex couples.
[6] The countries that have embraced immigration equality are; Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland and the United Kingdom.
[7] 8 C.F.R. §204 (Lexis 2009).