Shirley Tan, Jay Mercado and children Jorienne and Jashley Mercado. (Washington Blade photo by Blake Bergen)

For Shirley Tan and Jay Mercado, the debate on comprehensive immigration reform in Congress is a make-or-break moment that will determine whether their family can remain together in the United States.

The California couple, among the estimated 36,000 bi-national same-sex couples living in the United States, paid a visit to Capitol Hill on Wednesday along with other couples for a lobby day bearing a singular message: include the Uniting American Families Act as part of larger immigration reform.

Tan, a 47-year-old Philippines native who was denied asylum in 2009 and has since been threatened with deportation, said the inclusion of UAFA would be incredibly meaningful for her San Francisco-based family — as well as for other bi-national couples.

“My partner Jay, for 27 years, is faced with the problem of whether she has to quit her job and take everybody back to the Philippines,” Tan said. “She has an ailing mother who is on dialysis treatment right now, and I’m the one taking care of her, so don’t know if we have to put her in the home, and what about the kids? The Philippines is a foreign country to them.”

About 50 gay, bi-national couples from 26 states came to Capitol Hill on Wednesday as part of a lobby day effort organized by the LGBT group Immigration Equality.

Rachel Tiven, executive director of Immigration Equality, called the lobbying by the couples “really a huge asset” in ensuring protections for same-sex couples are included as part of immigration reform.

“These families today are here to look their members of Congress [in the eye], especially look their senators in the eye, one more time and tell them how much this matters to LGBT families,” Tiven said. “Everyone here knows that they’re representing not only themselves, not only their state, but they’re representing all the LGBT immigrants around the country, and around the world, that are waiting for change.”

Bi-national same-sex couples, where one individual is a foreign national and another is a U.S. citizen, are threatened with separation under current immigration code once the foreign national in the relationship falls out of legal status.

Straight Americans can sponsor their partners for residency in the United States, but that option isn’t available to gay Americans because of the Defense of Marriage Act and because they can’t marry in many places within the country. UAFA would enable gay Americans to sponsor their foreign partners for residency.

The moment for these bi-national same-sex couples will come soon. LGBT advocates are expecting an amendment along the lines of UAFA, which would enable gay Americans to sponsor their partners for residency in the United States, to come up when the Senate Judiciary Committee votes on the comprehensive immigration reform bill that was produced by the “Gang of Eight.”

On Wednesday, the couples met with a variety of lawmakers from across the country. On the agenda for Tan and Mercada was a meeting with staffers for Sen. Dianne Feinstein (D-Calif.). A member of the committee, Feinstein has yet to make a public statement on whether she’ll support UAFA as part of immigration reform.

Mercado, 52, said the meeting went well, but the staffer for the California senator wouldn’t make promises about how she’d vote if a UAFA amendment came before the committee.

“She doesn’t know the exact answer from the senator, but she’s positive that she will be doing the right thing,” Tan said. “They saw a lot of the families that are affected, and most of the families that are affected by, the most bi-national couples, are in California. They say it’s about 10,000 couples in California alone.”

Feinstein’s office is staying quiet about whether she will support UAFA. Asked by the Washington Blade whether she’ll vote in favor of the legislation as an amendment to comprehensive immigration reform, Brian Weiss, a Feinstein spokesperson, said on Wednesday, “Sen. Feinstein is taking a look at the legislation. No announcement at this time.”

The California senator’s silence on UAFA is striking because the former San Francisco mayor is known for being a strong supporter for LGBT rights. She’s been the lead sponsor of legislation aimed at repealing the Defense of Marriage Act. Feinstein has also introduced a “private bill” limited to Tan and Mercado to keep them together in the United States.

The couple also met with Rep. Jackie Speier (D-Calif.), another UAFA co-sponsor, who gave her personal assurances that she’d vote in favor of a UAFA amendment as part of immigration reform once the legislation comes over to the House.

Tan and Mercado have made their case on Capitol Hill before. In 2009, Tan testified before the Senate on the importance of passing UAFA. Her testimony at the time, in which she recalled her arrest in 2009 when immigration officials took her from her home, was considered moving. It inspired tears from her children, to whom Senate Judiciary Committee Chair Patrick Leahy (D-Vt.) said their mother was a brave woman.

Jorienne and Jashley Mercado — now 16 — accompanied their parents for the lobby day on Capitol Hill to help make the case for UAFA and had an audience with Leahy himself, the sponsor of UAFA in the Senate, four years after that hearing.

“We thanked him for supporting our families and being a champion for our families, that he’s helping out all of us,” Jashley said. “He said, ‘I’m glad that I’m helping you guys because you guys are really an inspiration.'”

Jorienne said passage of UAFA as part of immigration reform would offer his family assurances that his mother would be able to stay in the country without fear of deportation.

“It would mean a tremendous amount to our family because our mom is such an integral part of our family,” Jorienne said. “If we don’t have her here with us, then we’re not a family.”

Despite words from supporters like Leahy, it’s not clear UAFA will ultimately be included in immigration reform. The Associated Press reported earlier this week that Democrats are “treading carefully” because they’re wary of adding another issue to immigration reform that has already been attacked by conservatives like Sens. Lindsey Graham (R-S.C.) and John McCain (R-Ariz.).

Still, Tiven maintained inclusion of same-sex couples in the larger vehicle would motivate the LGBT community to act.

“The LGBT community is a tremendous asset to pushing comprehensive immigration reform forward to the finish line,” Tiven said. “The LGBT community has proven over and over again — at the state level, at the federal level — we know how to get things done. We know how to pass legislation and we are bringing our power to LGBT-inclusive immigration reform.”

‘We still live in a very uncertain and scary place’

Also among the couples on Capitol Hill was Sam Conlon and Gary Wanderlingh, who reside in New Fairfield, Conn. Wanderlingh is seeking the opportunity to sponsor Conlon, a British national, for residency in the United States. Married in Connecticut in 2011, the couple has twice filed spousal petitions that were both denied on March 29.

While relocating to the United Kingdom is an option for the couple, Wanderlingh, 43, said he doesn’t want to leave New Fairfield because he’s taught in the same school district for 18 years. He’d lose his pension and would have to renew his teacher certification if he moved overseas.

“The most compelling thing is my elderly mother, where unfortunately my father passed away on what would have been our wedding day, our scheduled wedding day,” Wanderlingh said. “I made a promise to him that I would take care of mom, though now I’m being faced with the choice of breaking the promise that I made to Sam to be together for the rest of our lives.”

Upon their visit to Capitol Hill, the couple visited the office of Sen. Richard Blumenthal (D-Conn.), who’s already a UAFA co-sponsor. Conlon said they also spoke with staffers for Sen. Chris Murphy (D-Conn.) and Rep. John Larson (D-Conn.), and while they were supportive, received no commitments. Neither Murphy’s office nor Larson responded to the Blade’s request for comment on UAFA.

Conlon, 36, said he’s glad there’s an opportunity to have immigration reform passed that would help his family.

“We’re glad to see that there is a buzz around this,” Conlon said. “It’s very encouraging to see the winds changing in our direction in the last few months. But there’s never any guarantees, until it’s passed, until we know we have rights, we still live in a very uncertain and scary place.”

There could be another option for bi-national same-sex couples who are married. If the U.S. Supreme Court issues a ruling that strikes down Section 3 of DOMA, gay Americans could begin sponsoring their same-sex spouses for residency within the country. However, it’s not certain the court will strike down DOMA and other issues could arise in which UAFA would be needed.

Ben Story and Brandon Perlberg (Washington Blade photo by Blake Bergen)

Brandon Perlberg, 35, and Benn Storey, 31, who are living in exile in London after Perlberg, a U.S. citizen, had lived in New York City for 15 years and Storey, a British national, lived there for seven years. Although they aren’t married, they’re engaged and planning a London wedding.

Perlberg, an attorney, explained he chose to live in exile with Storey, who couldn’t remain in the United States after his work visa expired and he couldn’t get a green card through his employer.

“Because I can’t sponsor him for a green card, it became clear that Benn was going to have to move to the U.K., and that meant that I had to make a decision over whether I was to live my life in the country, or move to England with the person that I love,” Perlberg said. “I chose the latter. We moved to the U.K. in 2012. UAFA is the bridge; UAFA is the instrument that gives us the ability to return to the United States.”

The couple met with staffers for lawmakers from New York — Reps. Hakeen Jeffries (D) and Carolyn Maloney (D) — and had plans to meet with staffers for Sens. Chuck Schumer (D-N.Y.) and Kirsten Gillibrand (D-N.Y.), who co-sponsor UAFA.

“When you meet with a staffer, they can’t give you a firm position,” Perlberg said. “But I think that the meetings were generally positive. People seemed to understand our position, and as well, they seem to get that it’s not just about the couple, it’s about the couple’s family, it’s about the couple’s employers, it’s about the people that the couple relates to.”

Not every individual lobbied members of Congress with their significant other. Michael Upton, a gay 49-year-old South Hero, Vt., resident, came to Capitol Hill by himself because his partner of more than five years, a Brazilian national, is unable to come into the United States.

“It’s awful,” Upton said. “We’ve never been able to be together. He’s never met my family. My dad actually recently passed away. We petitioned for humanitarian parole so he could be there in Vermont, so we would have to choose. It was denied. I was in Brazil when my father died, so I couldn’t be with my family.”

Because the two live apart in different countries, Upton said he had to give up his job at the Veteran’s Administration caring for troops coming home from Iraq and Afghanistan to become a federal contractor so he could he have more flexibility to travel to see his partner.

Upton said he met on Capitol Hill with Leahy, and said the senator told him he’d do everything he could to ensure immigration reform is amended to include UAFA. Upton said he also met with staffers for gay Rep. Mark Pocan (D-Wis.) and Rep. Bill Owens (D-N.Y.), who also expressed support.

For Upton, passage of UAFA as part of immigration reform is the last hope for him and his partner to stay together in the United States. While he’s hopeful, he also realizes there’s no guarantee.

“This is the difference between whether or not we can continue,” said Upton as his eyes welled with tears. “I’m hopeful, but I’ve been hopeful about a number of opportunities for John to come and they’ve fallen flat. My state has the champion for this issue, and I think he’s completely committed, and he’s one of the most powerful men in the Senate, so if anybody can do it, he can.”

Bi-national same-sex couples lobby Congress to include UAFA as part of immigration reform. (Washington Blade photo by Blake Bergen)

CORRECTION: An earlier version of this article incorrectly attributed quotes to Sam Conlon and Gary Wanderlingh. Additionally, the article incorrectly suggested UAFA could be an alternative for gay Americans to sponsor their foreign partners for residency in the United States after DOMA is struck down if their relationship isn’t a legal marriage. However, UAFA won’t be operative for these couples after DOMA is gone because Section 2, Part D of UAFA states the law doesn’t apply to couples who are able to enter into “a marriage cognizable under the Act,” which would be all bi-national couples in a post-DOMA world. The Blade regrets the errors.

Lavi Soloway, a gay immigration attorney and co-founder of The DOMA Project, explained further the situation for bi-national couples in a post-DOMA world.

“After Section 3 of DOMA is struck down, many unmarried lesbian and gay binational couples will marry in the states or countries where marriage is legal for same-sex couples,” Soloway said. “Those couples already living in ‘marriage equality’ states will be able to marry where they live, while other couples will travel out of state to marry as gay and lesbian couples do every day in this country. Thousands of bi-national couples who are separated or exiled abroad and who are not married, may be eligible to petition for fiance visas so that the foreign partner can come to the United States to marry and to apply for a green card based on that marriage. Because immigration law is so complicated and so much is at stake in these cases, all binational couples are strongly advised not to take any action after the Supreme Court rules on DOMA without first seeking legal counsel. “