Immigration Barriers for Same Sex Partners

The Human Issue
I recently attended the greatest party in San Francisco’s Mission District. A good friend, an RPCV who served in recent years in a small African country and her African husband, met during her time in Africa, were hosts. They have a beautiful young daughter and are expecting their second child in a few months. The crowd was like what most Peace Corps folks have partied with at one time or another, as energetically mixed and diverse as it could be. It was straight and gay, old and young, black, white, biracial, Hispanic, Asian, native-American. There was good food and fine beverages. A spirited family of African musicians visited with and played for us. Three prominent faces from the local progressive political community made appearances later in the evening. Name almost any slice of the American pie; she or he was there.

The next day I wondered if I might be invited to such a party hosted by a same-sex binational couple, a former Peace Corps volunteer and his or her partner met during Peace Corps service. Not so likely I think. It was about ten years ago that I first came across a situation where a gay RPCV had to make a hard decision about his future. He had been a volunteer in a South Asian country. While there he met the man who was to become his life partner. After Peace Corps service the volunteer was able to facilitate his partner’s enrollment in an American university. Years later after college and graduate school and many temporary visas, the partner was going to have to leave and return to his home country. The former volunteer and his partner made the decision to emigrate to Canada where immigration law would allow them to stay together.

I have come across so many more cases in the last couple of years. I have a good friend, an RPCV here in the States. He has a partner in China. The partner has applied and been accepted as a student at a university near his American partner’s home. The Chinese partner applied for a student visa and was interviewed by an American counselor official in Shanghai a few weeks ago. He was turned down after a five-minute interview. I know a woman who was a volunteer in a former Soviet republic. Her partner there and the former volunteer do not have the financial resources to attempt getting a visitor’s or student visa.

I have a good friend who was also a volunteer in a former Soviet republic. While there he met and fell in love with a local man. This man is an accomplished professional and has business dealings in the United States. He has been able to get visas to come on business and be with his partner for limited periods of time. He is now looking for opportunities to come on a more permanent basis. I have another friend, an RPCV from a Southeast Asian country. His situation is similar. His partner, a teacher, has visited the States a couple of times for short periods. My friend is thinking of an early retirement in this Southeast Asian country, in part to be with his partner.
If you’ve read our newsletter recently or participated on our listserv, you’ve read about two recent volunteers who are trying to figure out how to maintain and progress their relationships with their African partners. Both finances and current immigration law work against them. What are our alternatives, our choices? They are few. Immigration opportunities for non-American partners of American LGBT people are a key part of the battle to gain our equal legal rights.

Joseph Wheeler, an RPCV (Armenia) and a lawyer (though not specializing in immigration law), has researched these issues. He describes many of the immigration and legal barriers we face.

The Legal Realties
Most binational couples can stay together after marrying because U.S. citizens and permanent residents have the right to sponsor a foreign national spouse to become a legal U.S. resident, and ultimately a citizen. Unfortunately, thanks to the 1996 federal Defense of Marriage Act, same sex marriage is not recognized for any federal purpose, including immigration. This is true even if the marriage was lawfully performed in a jurisdiction that recognizes same sex marriage, such as Massachusetts or Canada. A bill called the “Uniting American Families Act” has been introduced in the U.S. Senate and House of Representatives and, if passed, would grant U.S. citizens and permanent residents the right to sponsor their same-sex partner for immigration benefits. It currently has nine sponsors in the Senate and 66 in the House. However, the political climate of late has not been particularly friendly to either immigrant rights or gay and lesbian rights. So, same sex binational couples have to pursue other legal avenues to stay together.

Gay and lesbian foreigners are not discriminated against as individuals in applying for visas and citizenship in the U.S. In fact, immigration officials are not allowed to ask about an applicant’s sexual orientation. So, gay and lesbian foreign nationals may enter the U.S. through the green card lottery like anyone else, but a very small percentage of applicants have the luck and patience for this. They may also enter the country legally by finding a U.S. employer willing to sponsor them, but such employers are rare and a foreign national generally must have special skills including a four-year degree in his or her field.

Depending on the circumstances, political asylum may be an option for foreign gays and lesbians. Asylum is based on an individual’s past persecution and well-grounded fear of future persecution on account of certain characteristics, including membership in a social group. In the past decade, asylum in the U.S. has been granted to hundreds of gays and lesbians persecuted on account of their sexual orientation in many different countries including Cuba, Russia, Mexico, Ghana, El Salvador, and Lebanon, to name a few. However, the asylum seeker faces two big obstacles. First, the individual must enter the country by other means (e.g., tourist visa, sponsorship by an employer). The second obstacle is proving persecution, which requires more than merely proving discrimination (e.g., incarceration, rape, electroshock “therapy”).

Another option being increasingly considered by same sex binational couples is immigration to one of the sixteen countries that now recognize same sex partnerships for immigration purposes, particularly Canada. However, this option requires that one partner become a Canadian permanent resident and then sponsor the other. In order to become a permanent resident, an alien must have Canadian relatives or prove that he or she is a “skilled worker” or can make substantial investment in a Canadian business. The standard for asylum is also technically the same in Canada as in the U.S., but has generally been applied more generously with regard to gays and lesbians in Canada than in the U.S.

Some gay and lesbian couples quietly discuss finding an opposite-sex U.S citizen willing to marry a gay or lesbian foreign national or finding another same sex couples facing the same dilemma and marry each others’ partners. It is impossible to know how common this practice is because it requires discretion, but anyone considering such an arrangement should beware of the legal and criminal implications. It is illegal to marry someone for the sole purpose of conferring immigration benefits. If such a fraud is discovered by the INS, the foreign national will be jailed or deported and deemed permanently inadmissible to the U.S. and the American citizen spouse may face up to a $250,000 fine. Even if the arrangement is undiscovered by the INS, marriage involves many rights and responsibilities that could have unintended consequences. These depend on the state you live in, but, for example, the (opposite sex) spouse may be entitled to a big chunk of your estate when you die (regardless of what your will says), your spouse gets to make decisions for you if you are incapacitated, you have a duty to support your spouse (even if he or she runs up huge credit card bills without your approval).

This is only a brief description of the legal environment same sex binational couples face and does not take into consideration how the law might apply to any individual’s particular situation. Anyone seriously considering any of these options should consult an attorney experienced in immigration law. Referrals of GLBT-friendly immigration attorneys (and lots of other useful information) is available on the Lesbian & Gay Immigration Rights Task Force web site at www.lgirtf.org.