THE ABC'S OF IMMIGRATION - OPTIONS FOR GAY AND LESBIAN COUPLES
As the world becomes a smaller place through globalization, more and more people are traveling abroad, for pleasure, for school, and for employment. One result of this change has been an increasing number of marriages between people of different countries. For the majority of US citizens in a relationship with a foreign national, the answer is straightforward – get married and file an application for a green card for the spouse. For some, however, there is no clear answer.
Because federal law recognizes marriage as existing only between a man and a woman, a US citizen cannot petition for a green card for a same sex partner. This is true even if the couple has entered into a legally binding arrangement, such as the civil unions now performed in Vermont, or other similar domestic partnerships found in other countries. For the past two years, legislation has been introduced in Congress that would allow US citizens to petition for same sex partners, but given the anti-homosexual bias that is dominant in Congress, such legislation has little hope of passage. So people in a gay or lesbian relationship with a foreign national face extreme difficulty in remaining together.
In this article, we outline some of the ways people in such a predicament can stay together. Detailed information on the visa categories mentioned below is available in other ABC’s of Immigration articles which can be found online at http://www.visalaw.com/abcs.html.
Assuming that they otherwise qualify, the foreign national can enter the US on a student visa. They must, of course, comply with the terms of the visa, and the visa will eventually expire, meaning that the person must either leave the US or find another visa status.
Work visas allow a person to live and work in the US for, in some cases, an indefinite period of time. The primary drawback to most common work visas is that they allow the person to live in the US only for a limited period of time. For example, the time limit on H-1B visas is six years and for L visas it is five or seven years. There are some work visas that may be renewed indefinitely. The O visa for people of extraordinary ability can be issued in three-year increments for an indefinite period of time, as long as the visa holder is doing work in the area of their extraordinary ability. The E visa, for people making an investment to start a business in the US, can be issued in five-year increments for an indefinite period. TN visas for Canadian and Mexican professionals can also be renewed without limit.
Regardless of how long a person can live and work in the US on a work visa, however, there will always remain the fact that they are not permanent residents, and could be separated from their loved one on the whim of an employer or a down turn in economic conditions.
Because a US citizen in a same sex relationship with a foreign national cannot file for his or her immigration, the foreign national has to seek a green card through another route. If they have a qualifying family member (for example, a US citizen parent or sibling) the family member can apply for their immigration. This is, however, a long process. Currently (March 2001), immigrant visas are being issued for unmarried adult children of citizens in cases filed in March of 1999. For applications made by a sibling, visas are being issued in cases initially filed in October of 1989. Permanent residents can file for their adult children, but in these cases visas are being issued for applications initially filed in June of 1993.
Often, a quicker way of obtaining permanent residence is through an employer who is willing to sponsor the foreign national.
The foreign national can also apply for a green card through the diversity visa lottery if they are from a qualifying country. Given that only 50,000 visas are available each year and the fact that there are millions of applicants, this is by no means a sure way of getting a green card.
A final way that the foreign national in a same sex partnership can remain in the US is through an asylum application. In recent years asylum claims on the basis of persecution because of one’s sexual orientation have become more widely accepted. However, such cases are more difficult than most asylum cases, and require substantial proof of persecution.
The bottom line is that couples in same sex relationships must be creative in devising workable visa strategies. If you are interested in learning more about immigration issues that affect the gay and lesbian community, visit the website of the Lesbian and Gay Immigration Rights Task Force at http://www.lgirtf.org.