Setting aside the policy question of recognizing same-sex marriages – it does not bother me but it certainly bothers others – what will the impact of the Supreme Court's Defense of Marriage Act decision be on the extent of legal immigration to the U.S.?
My sense is that it will add many thousands more people to the legal migration stream, and will also let a handful of potentially deportable illegals with gay American partners stay in the U.S. These are people who would have been – had the ruling gone the other way – potentially subject to deportation but unlikely to be actually deported due to the policies of the Obama administration, such as prosecutorial discretion.
The ruling will also, on a longer term basis under current law, allow some gay partners of green card holders to come to the U.S.; currently they are not eligible to migrate based on that relationship. Further, if there is an amnesty program of any kind, the newly legalized would probably be able to secure legal status (of some kind) for their same-sex spouses.
All of this will not lead to many second-generation impacts – i.e., children – but it will, in other ways, lead to some more chain migration, as many of the newly admitted same-sex spouses, over time, will become citizens and start filing petitions for their siblings and parents.
In short, this is another move which will increase immigration to the U.S.
My sense is that this is not a major worry compared to S.744, but it should cause all of us to pay more attention to the population-expanding impact of the Senate bill, in light of the fact that we are going to get some additional migrants (but a lot less than from the proposed Senate bill) because of the Supreme Court ruling.
In short, the ruling just makes the decision on S.744 that much more important.
Let me elaborate my own hunches (as a non-lawyer) regarding the three ways outlined above that the ruling will expand legal migration to the U.S. under current law. In order of significance, they are:
1. More migrant-spouses of citizens. This is much the largest of the three categories. In each of the last three fiscal years we have admitted, outside all numerical ceilings, about 268,000 spouses of citizens in traditional marriages. The ruling might expand that flow, over time, by perhaps five percent each year. That would be about 13,400 additional migrants a year.
There might also be a first-year rush, as some same-sex couples, denied immigration benefits in the past, seek visas.
2. More migrant spouses of green cards holders. There is currently a flow of about 100,000 spouses and children of lawful permanent residents (green card holders) arriving each year; perhaps the applications would increase by 5,000 a year, but this would have no immediate impact on the size of the American population because of the existing numerical ceilings, so the population would not expand, only the waiting list.
3. A few more illegals pardoned by the immigration courts. Currently only in traditional marriages can an illegal alien, about to be deported, claim that such an action would bring extreme hardship to a citizen or permanent-resident spouse, and thus be allowed to stay in the country. These are cancellation of removal cases, which can produce no more than 4,000 immigration slots a year.
These are not easy cases to win in immigration courts under any circumstances, but I suppose the Supreme Court ruling would benefit some illegals with same-sex partners. If so it would not add to the population, but only to the waiting list, as above.
There has been a recent study by the Wilson Center at UCLA regarding estimates of the numbers of "same-sex binational couples" currently living in the country; there were about 28,500 couples found with one U.S. citizen, and another 11,500 couples in which neither partner was a citizen (though one of them could have been green card holder). For more see this Immigration Daily article. Again, small numbers; and these deal with the population of such couples, not annual admissions numbers.
In contrast to the mild numbers estimated above, the prospect of bringing the decision to bear on same-sex aliens about to be legalized would benefit a much larger population of aliens, and would do so all at once. The one-time admission of five percent of an amnestied population of, say, 8,000,000 could be something like 400,000.
There presumably would be no statutory upper limit on these numbers. On the other hand, the incidence of same-sex unions among the amnestied – given that the illegals are largely from very traditional societies – may be smaller than in the host population.
All of this speculation assumes that the Congress will pass something like S.744, which may or may not happen.
My bottom line is that the judicial branch has already expanded our migration flows – under current law – so let's be extra careful about any and all legislative branch actions that run in the same direction.
Nuances and counter currents. One of the interesting and useful by-products of the Court's decision – and here I am speculating - is that it will probably totally undercut any congressional effort to change the same-sex marriage rules as yet another amendment to S.744. Why tackle that issue when the Supreme Court has done it for us? That would be a common question on the Hill.
This is useful because, I gather, the proposed amendment on the issue would have defined same-sex marriages much more broadly than did the Court, and would have allowed people to claim existing non-licensed relationship arrangements as partnerships under the immigration law, and would have allowed them to use affidavits to advance their petitions, as opposed to marriage documents.
By striking down part of DOMA, the Court allows same-sex marriages to be accepted by the feds, but does not, I gather, extend that recognition to de facto unions.
Meanwhile, the same-sex marriage advocates, while delighted with the ruling, point out that it will be more favorable to same-sex couples with money than to those at or near the poverty level. If the couple lives in Brownsville, Texas, for instance, they might have difficulty raising the funds to travel to, say, Iowa or New York, to get a formal, legal marriage; they would need such a marriage to obtain any immigration benefits.
The author is grateful to his CIS colleagues Jessica Vaughan and Jon Feere, and to CIS intern Tova Baars, for their comments and assistance.
