Couples Separated by Borders
Last year, when President Clinton was told about a gay couple that is prevented from living together because of the U.S.'s immigration laws, President Clinton responded, "I don't think that's right. I think that ought to be changed."i Historically, the immigration laws of the United States have not been very welcoming towards homosexuals. It was not until 1990, that Congress amended the Immigration and Nationality Act to remove the section of law that excluded homosexuals from entering the United States.ii
With the recent popularity of domestic partnership legislation and the enactment of the Civil Union Act in Vermont, it seems only natural that one day the United States should follow the lead of a number of other industrialized nations and recognize the need for special immigration provisions to protect the foreign same sex partners of U.S. citizens. The recently introduced Congressional Bill, "Permanent Partners Immigration Act of 2000" may be a step in that direction.
Growing numbers of bi-national same sex couples face separation unless their foreign citizen partner can qualify for some other type of permanent immigration status. Some couples may be able to stay together if the alien partner is eligible for immigration benefits based on other grounds, namely employment, asylum, family, or the diversity lottery. These types of applications, however, are more difficult and time consuming than the traditional marriage immigration petition process.
Green cards through employment are difficult to come by. The alien must posses certain educational requirements and work experience in a particular field to qualify. In addition, most employment-based options require a certification from the U.S. Department of Labor that there are no qualified U.S. workers for the position. In addition, there is a fixed quota for visas, leaving some people waiting years for this option. The alien must have an U.S. employer willing to sponsor them for this immigration process and many employers are reluctant to do this.
Another option would be for the alien to qualify for permanent residency based upon their familial relationship to somebody other than their partner. This process is also likely to take a number of years to complete and for many they will be forced to leave the United States while their application is pending. For example if the foreign national were to petition based upon their relationship as a sibling to a U.S. Citizen they would have to wait over ten years.iii If you are from the Philippines, be prepared to wait even longer because as of the September 2000 Department of State Visa Bulletin they are currently working on applications received in August 1979. The long wait is due to the fact that only a certain number of Immigrant Relative visas are given out each year. Once those are used, everybody else has to wait until another visa becomes available.
As visas become available, they are given to those who filed their visa applications first. This has created what has come to be known as "priority dates." An alien's priority date is the date that the INS received their application. These dates then serve the purpose of giving the alien a number in the line of people waiting for immigrant visas. The priority dates being worked on by the INS at any given time are listed every month in the Department of State's Visa Bulletin. For example, the priority date currently being worked on by the INS for unmarried sons and daughters of U.S. citizens who are over the age of 21 is April 3, 1993(this does not include citizens of Mexico, that priority date is October 1, 1991).iv If your priority date is not current and you do not have any other lawful reason for being in the United States, you must leave the U.S. until people with your priority date become eligible for an immigrant visa.
Comparatively, because spouses of U.S. citizens are considered to be immediate relatives, they are not subject to the priority date system and can file their application for permanent residency as soon as they get married thereby preventing newly married couples from being separated for long periods of time. Additionally, if the couple gets married in the United States after the foreign national spouse has made a legal entry into the U.S., most couples can file their marriage application at their local INS office and be able to remain in the county while that application is pending. If same sex couples were given a similar immigration status to that of heterosexual couples it will prevent many couples from having to live apart until an alternative immigration option is found.
If the alien comes from a designated country, they may also be eligible to apply for permanent resident through the diversity lottery (a.k.a. the green card lottery). The 2002 Fiscal Year lottery will make 55,000 immigrant visas available to those who win the lottery.v Like any lottery, your chances of winning are slim and if you are from Canada, mainland China, Columbia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland), or Vietnam you are not eligible for the lottery because your country of origin has sent more than 50,000 immigrants to the U.S. in the past five years.vi While the lottery is certainly an option for some same sex couples, there is no guarantee that a lottery entry will result in a green card thereby leaving same sex couples with more uncertainty about their future live together.
An application for asylum may be an option if there is a fear of persecution. Since 1994 a small number of lesbians and gay men have been granted asylum in the United States due to persecution that they suffered in their home countries on account of their sexual preference.vii Applicants from China, Brazil, Mexico, Honduras, Iran, Venezuela, Jordan, Syria, Bangladesh, Lebanon, Pakistan, Romania and Russia have been granted asylum based on their claims of sexual orientation persecution.viii Asylum applicants, however, must be able to document that they suffered individualized persecution based on their sexual orientation by a government actor or by a group that the government has been unwilling or unable to control. This may be difficult for many to prove, especially if their country of origin is seen as welcoming to people of diverse backgrounds (for example, it would be unlikely that someone from Canada or the United Kingdom would be able to bring a successful asylum claim based upon their sexual orientation).
Many same sex couples realize that their legal immigration options are limited and, therefore, try to outsmart the INS by finding a gay or lesbian couple in their same situation that will be willing to exchange partners for marriage purposes. Even though their appearance of being part of a heterosexual couple will allow them to apply for permanent residency based on marriage to a U.S. citizen, the INS views these marriages to be "sham marriages." Sham marriages are defined as those marriages in which the couple does not intend to live together as husband or wife and whose only purpose in getting married was to circumvent the immigration laws.ix
The risks for participating in such a marriage are high. If discovered by the INS, criminal penalty is imprisonment for up to five years and/or a fine of up to $250,000 for both for the U.S. citizen and for the alien spouse.x Many same sex couples, however, are willing to risk theses serious repercussions because they want so badly to be together and have no other immigration options available to them.
While today the situation for bi-national same sex couples is grim, there may be hope on the horizon. On February 14, 2000, Congressman Jerrold Nadler (D-NY) introduced the "Permanent Partners Immigration Act of 2000" along with 15 cosponsors to the House of Representatives.xi This Bill, if passed, would allow "United States citizens and lawful permanent residents to sponsor their permanent partners for residence in the United States."xii The Bill defines a 'permanent partner' as:
an individual over 18 years of age who -
Some will argue that because the United States does not legally recognize same sex marriages (the recently enacted law in Vermont only recognized "civil unions" not "civil marriages"), there is no basis for allowing same sex partners of U.S. citizens to acquire the spousal immigration benefits traditionally reserved for heterosexual couples. This reasoning, however, has done little to stop thirteen other countries that do not legally recognize same sex marriages, from providing the same sex partners of their citizen's permanent legal immigration status. Currently the United States is one of the few if not the only industrialized English speaking nations not to provide some type of immigration benefits to same sex partners.xiv Canada, the United Kingdom, Australia, New Zealand and South Africa all recognize the immigration rights of same sex couples, even though they do not recognize same sex marriages. Some of the countries, however, do recognize "Registered Partnership Agreements," which are similar to the recently enacted Vermont law. Other countries that are providing immigration rights to same sex couples include France, Belgium, Iceland, the Netherlands, Norway, Denmark, Finland and Sweden.
Since June 16, 1999, same sex couples in the United Kingdom have been able to apply for immigration benefits based upon their relationship.xv Initially, the foreign partner must have been in the United Kingdom legally, but the law has recently been broadened to include those illegally in the United Kingdom. The couple must also have been in the relationship at least two or more years and they must also be living together. There is also a two year probationary period, which is similar to the conditional residency provision for heterosexual couples in the United States (If a couple has been married for less than two years the INS will give the alien spouse conditional permanent residency and the couple will need to apply to have that condition removed after two years by showing that they are still married and have a bona fide husband and wife relationship). After the couple has initially petitioned they must wait for a probationary period of two years and show that the relationship is still in existence after those two years before they can apply for permanent residency in the United Kingdom. If the relationship ends because of the death of one partner or domestic violence before the probationary period is up, the foreign partner will be allowed to stay in the United Kingdom. The evidence submitted in support of this application is similar to the information the INS requires for heterosexual couples filing marriage petitions. This evidence would include details of joint commitments (bank accounts, leases, life insurance, etc), evidence of cohabitation, correspondence that links them to the same address, a cover letter detailing how they met, shared activities and hobbies, milestones in the relationship, what makes your partner special to you, and how you would feel if you would be forced to live apart. Additionally, the couple submits supporting letters from friends and family explaining why they think that the relationship is genuine and committed and whether they consider the relationship to be 'akin to marriage.'xvi The couple must also be able to show how they will be able to support themselves without resorting to public funds. British citizens, European Union nationals, and persons who have been given refugee status in the U.K. are allowed to sponsor their same sex partners for immigration purposes.xvii
Since June 1994, Canada has provided residency to foreign national same-sex partners based upon their relationship to a Canadian citizen or resident.xviii Canada, like the U.K., does not include same-sex partners in their family based immigration category, and instead bases these grants of permanent residency on "humanitarian and compassionate grounds."xix Canada believes that this special consideration for same sex couples is necessary to prevent undue hardship that would result from separating or continuing the separation of a bona fide same sex.xx Canadian is also unique in that they allow immigration officials to consider immigration applications from same sex couples when neither partner is Canadian.xxi
While Canada requires applicants to provide evidence regarding the duration of their relationship and financial and emotional interdependency, the guidelines that visa officers must follow offer no details about how long the relationship must have been in existence for, if cohabitation is even necessary, or exactly what documents should be provided as evidence of the relationship.xxi Because there are no explicit guidelines, Immigration Officers have broad discretion in deciding the applications of same sex couples on humanitarian and compassionate grounds.xxiii Because Canada's regulations are less restrictive than those in the other countries which provide immigration benefits to same sex couples, Canada has been able to assist same sex couples from around the world achieve their dreams of living a life together. This has included many U.S. citizens who have been forced to leave their own country so that they may be able to live together with the person that they love.
Citizens and permanent residents of Australia are eligible to apply for their same sex partners to live with them in Australia. To qualify the couple must show that for the 12 months immediately proceeding the date of the application they had a "mutual commitment to a shared live." This includes showing that the couple's relationship is genuine and that they have been living together on a permanent basis.
It is unfortunate that even with the United States' historical worldwide reputation for being a land of immigrants and freedom of expression, we must now follow the lead of thirteen other nations who value the relationships of their citizens more than we do.
i Information provided by the Lesbian and Gay Immigration Rights Task Force, U.S.A.
About The Authors
Ms. Tripiciano is an attorney with the law firm of Karam & Associates in Minneapolis. She focuses primarily in the area of family and employment based immigration.
Karam & Associates