Dilemmas and Solutions for Bi-national Same Sex Couples

Editor’s note: Last August we published an article titled Immigration Barriers for Same Sex Partners. Since then we have referred many current and recent Peace Corps volunteers to it (http://www.lgbrpcv.org/articles/08_05_immigration.htm) and to the Immigration Equality website (http://www.immigrationequality.org ). An RPCV who has had much experience with this issue has agreed to share some of his and his host country partner’s efforts to live together in the same place in a committed and established relationship. They are now in the process of establishing themselves in Canada. Because their immigration and related issues are not fully settled, we are not using his name, but we will forward any email messages from readers to him.

For three of the last four years my partner and I lived apart as we have tried to find a legal and ethical resolution to the immigration problems of a bi-national same sex couple. We met while I was a Peace Corps volunteer in Asia. He was finishing up a graduate degree at a nearby university. Because I had reasonably private living quarters, we lived together for two of my three year’s of service. It was a happy time for us and we decided to figure out how to spend the rest of our lives together.

We immediately were faced with the reality that there is absolutely no provision in U.S. immigration law that allows same-sex spouses to come to the United States. The Defense of Marriage Act of 1996 prevents any federal official from recognizing the legitimacy of same-sex relationships. Even if a consular officer sympathized with a particular case, he or she would be forbidden by law from issuing a same sex partner a visa under that pretext. The amount of money one has is quite irrelevant. Money has little to do with sponsoring somebody for permanent residence. Only immediate family members can sponsor immigrants. Legally, we are not families.

Some American partners talk about the possibility of a marriage of convenience, a foreign partner marrying an American of the opposite sex for the purpose of immigration. There are of course moral questions to consider, but those are personal considerations left to one’s own system of values. Rather, I thought more about the potential dangers of such a strategy. The post-9/11 environment is quite severe where immigration policy is concerned. The Bureau of Citizenship and Immigration Services is far more rigorous in its examination of marriages. The ruse one would have to play for an extended period of time would be quite demanding. The risk of getting caught is quite high. Not only are marriages of convenience a violation of federal law, but they also put your partner at risk of being permanently blacklisted. If caught, your partner might be jailed, deported and barred from entering the United States ever again. I don’t think that this is a risk worth taking.

My partner and I have considered all such schemes to “get around” immigration policies. In the end, we decided to always abide by the letter of the law. The risk of his being blacklisted is too high, and neither of us wanted to face the prospect of his never being allowed into the country. We would have sacrificed our long-term goal of being together forever for immediate but transitory gratification. Instead, we have chosen to be patient, strategic, deliberate and diligent.

Let me say that not everything is hopeless. Let’s look at the options.
Short-term, a non-American partner can apply for a tourist visa (B-2). These visas are issued for one-year. Usually, an individual is allowed to stay in the country for ninety days per visit, but she or he may reenter multiple times throughout the course of the year. An individual on a B-2 visa is not allowed to earn an income in the United States. Applying for B-2 visas gives rise to much anxiety. The decision about whether to issue this visa is essentially at the whim of one visa officer. A negative decision is not subject to appeal.

The key to securing a B-2 visa is to put yourself in the mind of the visa officer, to think about what he or she is thinking when making the decision. The only mandate given to a visa officer is to prevent illegal immigration to the United States. Sure, he or she is also screening for potential terrorists and criminals, but this screening is primarily accomplished through sophisticated database systems. In examining your case, the visa officer is asking, “What is the probability that this person is going to overstay his visa and remain in the United States illegally?”

Obviously, this process is horribly subjective, and I’ve heard plenty of horror stories about bitter consular officers who denied visas perfectly legitimate individuals. Therefore, it is incredibly important to build your case with plenty of supporting documents that show that your partner does not plan to illegally immigrate.
Which documents you include depends on your situation. The optimal variant is to have a pretext for the visit. For example, my partner is a scientist and has been able to secure visas to attend scientific conferences. Another reason may be a family life-cycle event, such as a wedding. We were able to arrange for my partner’s mother and sister to come to the U.S. for my sister’s wedding - even though they both belong to high-risk categories: single women from a particular country. Again, it was a matter of making the case and documenting the case. Other evidence that your partner does not intend to immigrate illegally include assets, career, family and other obligations in her or his home country.

What case a former Peace Corps volunteer makes depends on the individual situation. I would caution one not to lie or make up a situation. Always be upfront and honest with the consular officer. These people are trained to sniff out lies, and if they catch even a whiff of deception, they will deny your visa application. Once denied, it is very difficult to get a visa. It’s not worth the risk.

Another option is a work-visa. This option, however, requires that your partner work in a field for which he could find an American employer willing to sponsor his work visa (usually H1-B, although there are other types). This is also very specific to the individual. The advantages of a work visa should be obvious. Your partner is allowed to work and reside in the U.S. for an extended period. A work visa can possibly lead to a green card.
Education is also an option. Your partner can apply to a U.S. higher education institution for a degree program (BA, MA or Ph.D.). Couples have had mixed results with this strategy. It requires significant coordination and financial commitment. Not all people who are accepted into degree programs are issued visas. On the other hand, when it works, it works fairly well, because people may be qualified to apply for U.S. jobs later on.

Another option is for your partner to seek asylum in the United States. Many gay men have tried this route. Sometimes, there really is a case of persecution that justifies the claim. Proving such persecution to the satisfaction of asylum case workers is extremely difficult, very time consuming, and not without risks. Moreover, your partner may not be permitted to return to his or her home country for a long time, which means not seeing family and friends. I think there is also a moral issue in seeking asylum for convenience. If some gays apply for asylum merely as a means to immigrate to the United States, they dilute the persuasive power of gays with genuine reasons for seeking asylum.

The final option, of course, is to look at other countries, several of which offer immigration rights to same-sex partners. Canada is the best option when one of the partners is a U.S. citizen. This is the option that my partner and I are now pursuing. He has been able to secure a Canadian visa, and I am now the partner looking for a job and work visa.

These are the primary options available to you. An immigration lawyer will tell you the same thing and charge you $100. I know; I’ve been down that road. Believe me, over the past four years, we have looked at every possible alternative, and I’ve become an expert on U.S. immigration policies. Our nation’s immigration policies are a mess; there’s no denying it. They are discriminatory, short-sighted and contradictory - not just for queer folk but for lots of other categories of people.

A very important initial step is to have a very open and honest dialogue with your partner about what this journey is going to entail. Discuss the alternatives available to you and the sacrifices - professionally, emotionally, and financially - that each of you will need to make for each alternative. Also, discuss the emotional challenges you are going to face considering that you are about to be confronted with a long-term long-distance relationship. This is not easy, but the only way your relationship will weather the storm is to keep the lines of communication open and honest at all times.

If you decide that you both are committed to making your relationship work, you can make it work. My partner and I have finally ended this most difficult phase of our relationship. The path has been difficult, and at times we thought that we wouldn’t make it. But now that we are at the next phase, I can tell you that it has been worth the struggle. We are living together in a nice apartment of our own in a major Canadian city. He is working and I am looking for a job.