Immigration Implications of the Demise of DOMA

By W.D. Reasoner on July 9, 2013

On June 26th, the Supreme Court voided key portions of the federal Defense of Marriage Act (DOMA). Although most media outlets, such as the Los Angeles Times, focused on the changes to tax, inheritance, health, and Social Security laws and policies the ruling would bring about, it seemed evident to at least some observers that another consequence of the decision would be in the way federal immigration authorities confer benefits to homosexual foreign spouses of American citizens petitioning on their behalf. Previously, such petitions were denied.

Now, according to a blog posting by Margaret Talbot on the New Yorker website, U.S. Citizenship and Immigration Services (USCIS), the federal government's immigration benefits administering agency, has granted the first green card to an alien whose husband petitioned for him.

This adjudication in favor of the alien spouse was an inevitable consequence of the Supreme Court's decision — although the rapidity of the first grant strongly suggests that the agency had it waiting in the wings in the event of a favorable opinion. It's reminiscent of an overeager kid bursting out of his seat, waving his hand to be first to answer the teacher's question: "Ooh! Ooh! Me! Me!"

There is no question that one immediate effect of the repeal of DOMA will be increased immigration. Spouses, whether heterosexual or homosexual, who receive resident alien status based on marriage to a U.S. citizen are not subject to visa quotas — they are numerically without any restriction. What is more, once they are granted status, they can in turn file papers to bring in a host of family members — for instance, parents and children from former marriages. Observers of the immigration system often refer to this as "chain migration", but in fact it's more like a pyramid, in which one resident alien family member can cause a geometric increase in the number of persons immigrating to the United States on a permanent basis.

To an immigration limitationist, such as me, that is anathema, whether it is brought on by heterosexual or homosexual relationships. Our system is already creaking under the weight of a system that is out of balance with the national interest. And there is no reason to think that homosexuals are any more or less law-abiding than heterosexuals. In addition to the innumerable legitimate marriages that will result in petitions for the alien spouse, there will also undoubtedly be a variety of fraudulent marriages — just as there are with heterosexuals — designed solely for the purpose of obtaining a green card for the alien.

I do not suggest that homosexuals be treated differently; what I do suggest is that Congress must get serious about amending a system that lends itself to fraud because there is a streamlined path to citizenship and no numerical limitations. As discussed in the Center's recent video interview with the architect of the USCIS fraud detection programs, Don Crocetti, fraud cases were found to represent a significant percentage of all marriage-based applications.

Many other advanced nations, such as Australia, have devised immigration systems in which there is a place for familial petitions, but that are balanced against other interests through a ratings system that also accords points for skills and education. It is time to end our anachronistic methodology, which has become a loophole wide enough to accommodate a double-wide tractor trailer rig.

Curiously, the immigration "reform" bill recently passed by the Senate does little to address the issue. By way of example, take a look at Section 3410 of that bill, misleadingly described as "Tibetan Refugee Assistance". On its face, the section provides relief to Tibetans by permitting them to seek refugee status in the United States. But take a look at the fine print: Subsection (c)(2) describes a "native of Tibet" as including not only those born in Tibet, but also their children and their grandchildren. Think about that. The grandchild of a Tibetan born and raised, for instance, in France would be entitled to apply under Section 3410.

So, to get back to the main point, it's simply this: Congress — or at least the Senate — still doesn't get that what so many Americans care about is the numbers, whether what you're discussing is Tibetan refugees or, more cogently, the unlimited flow of individuals entitled to apply simply on the basis of marriage to an American citizen. One of the least-discussed aspects of the Gang of Eight bill is the fact that it would dramatically expand legal immigration, possibly tripling the number of green card issuances over the next decade, with the vast majority continuing to go to relatives of prior immigrants, not to skilled immigrants as has been claimed. Reform? What reform?