Foreign Lovers Visits and Immigration

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While married women generally don’t need a court order for the
federal government (or any state or local entity) to recognize a name
change after marriage, men and same-sex partners in some states may be
required to go through a court process and get a court order before they
can obtain a new passport or Social Security card. But there’s no reason
not to try for the automatic postmarriage name change if you are married
or in a domestic partnership.
Resource
If you live in California, you can use the forms and step-by-step
instructions in How to Change Your Name in California, by Lisa Sedano
and Emily Doskow (Nolo). This book also includes a chapter on getting court
recognition of gender changes.
Foreign Lovers: Visits and Immigration
Suppose a fantasy comes true: You take a trip abroad and meet the
person of your dreams, who just happens to be a citizen of that distant
land. You come home and go back to work to earn money to take your
next vacation. In the meantime, your new lover wants to know the legal
rules about visiting you in America. More optimistically, what about
immigration rules if the sparks still fly once you’re together again?
Or suppose you are just going about your daily business at home, and
you meet and fall in love with someone who is a noncitizen, perhaps here
on a student visa. The same questions arise.
Visiting the United States
No law currently restricts lesbians and gay men from entering the United
States. To come as a tourist, your new lover would have two choices: to
arrive without a visa, which is permissible if he or she is from a country
that participates in the Visa Waiver Program (VWP), or to apply for a
tourist visa, which is available from overseas U.S. consulates.
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To find out which countries are part of the Visa Waiver Program,
check the U.S. State Department’s website at www.state.gov (click
“Travel” then “Visa Waiver Program”). Most of the countries listed are
Western ones, such as the United Kingdom, Denmark, France, and
Germany. People from these countries can basically pack their bags,
grab their passports, and head for the United States. Assuming they
pass the border inspection, they’ll be allowed in for a maximum 90-day
stay. Despite the ease of this option, you should warn your new lover of
its disadvantages: People who enter on visa waivers are very easy to kick
out of the United States, because they have no right to a court hearing if
U.S. immigration authorities take steps to deport them. (Exceptions are
made for people with dire needs such as medical emergencies or fear of
persecution overseas.)
The tourist visa option is the only choice for many applicants. This
involves filing an application form and meeting briefly with an official at
a U.S. consulate. With any luck, your new lover will be granted a multiple
entry visa, which can be used many times for visits of up to six months,
until the visa’s expiration date (usually ten years away). Unfortunately, if
your new lover indicates to the consulate or any border official an intent
to live permanently in the United States, or comes often enough to be, in
effect, living here, entry will be denied and the visa will be cancelled.
Some categories of people are never allowed into the United States
for any reason—in legal terminology, they are “inadmissible.” The U.S.
immigration laws contain a long list of grounds for inadmissibility. For
example, people with criminal records, terrorist links, or involvement
in drug trafficking are inadmissible. This can be an issue if your lover is
from a country that criminalizes homosexuality. Until recently, HIV was
among the communicable diseases of public health significance that made
a person inadmissible, and the tourist visa application form asks about
communicable diseases (although the application process doesn’t include
a medical exam). Fortunately, in late 2009, the bigoted HIV rule was
lifted.
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Moving to the United States
Moving to the United States permanently is a trickier business. Gone are
the days when a U.S. citizen could simply “sponsor” an immigrant—that
is, vouch for the person’s good character and issue an invitation. Now
the would-be immigrant must fit into one of various categories of visas
allowing either a temporary stay of a few years or permanent residence
(a green card). A complete rundown of every U.S. visa is beyond the
scope of this book. However, below we list some of the visa types most
commonly used—or asked about—by gay and lesbian couples.
Tip
Once in the United States, it is often possible to apply for a different
type of temporary visa just before the expiration of the visa that the person
used to enter. In that case, though, the immigrant must prove that there have
been no violations of the terms of the visa, and that there’s an intention to go
home at the end.
Marriage-based visa. Unfortunately, immigration laws still draw a sharp
line between heterosexual and homosexual marriages. U.S. citizens and
green card holders with heterosexual spouses can petition for them to
immigrate, but until DOMA is repealed, those with homosexual spouses
cannot—even if they’ve found a state or country that will legally marry
them. The Justice Department (DOJ) instigated a major policy shift in
early 2011, however, when it stopped defending DOMA in court. Now,
DOJ actually files briefs arguing against DOMA’s constitutionality.
The Supreme Court is eventually expected to address this issue, though
experts estimate that we shouldn’t expect a Supreme Court decision
before 2013. In the meantime, there’s still no concrete way for a U.S.
citizen to petition for a same-sex spouse to receive a green card.
However, in the meantime, U.S. Immigration and Customs
Enforcement (ICE) has offered an interim solution, providing samesex partners of U.S. citizens at least some minimal immigration rights.
New guidelines allow ICE agents to use “prosecutorial discretion” when
deciding whom to deport (remove) from the United States. Agents are to
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give special consideration to students and other upstanding immigrants
who have strong or longstanding ties to the United States and make
contributions to the community, especially when their removal from the
country would divide a family into pieces. Although the relevant memo
did not specifically allude to same-sex couples, subsequent actions and
statements by the Department of Homeland Security, ICE, and the
White House, as well as various decisions by immigration judges, have
made clear that a same-sex marriage will be treated as a family tie for
purposes of this exercise of discretion.
In literal terms, what does this exercise of prosecutorial discretion
mean? An immigrant who is arrested and threatened with deportation
can request an exercise of prosecutorial discretion from ICE (even before
the matter gets to Immigration Court), by showing upstanding behavior
and family ties. If the request is granted, the person would essentially be
put into legal limbo—not deported, but not granted permanent status,
either. If the request were not granted, the case would be referred to
immigration court, where the immigrant should be able to renew the
request for prosecutorial discretion. (The procedural details are still being
worked out.) If granted, the case would be administratively closed—
which means put on a pending, inactive status.
If you wish to marry a transgender person who is now of the opposite
sex, there’s good news: If your state recognizes the marriage, the
immigration authorities will too, and should grant a marriage-based
green card.
“Marriage of convenience” to a U.S. citizen. Yes, some people find a
willing U.S. citizen of the opposite sex—perhaps even a close friend—to
marry the immigrant and go through the paperwork and interviews
required to get a green card. However, we can’t recommend this illegal
course or advise you on it. A sham marriage can land both parties in
big trouble—including prison time, hefty fines (up to $250,000), and
deportation of the immigrant, with little chance of returning to the
United States. In one case, a lesbian immigrant married a U.S. citizen
and got caught because she couldn’t tell the immigration officer what
kind of contraception she and her husband were using—having never had
to worry about preventing pregnancy!
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Resource
For more information on marriage-based visas, see Fiancé & Marriage
Visas: A Couple’s Guide to U.S. Immigration, by Ilona Bray (Nolo).
Political asylum. If your lover comes from a country where persecution
of homosexuals is a real fear, perhaps because of sexual orientation, an
HIV diagnosis, or political activities, applying for political asylum is a
possibility. (An application for asylum can be submitted only after your
lover is in the United States, however. People who are still overseas can
apply for refugee status, but it’s more difficult to get.) The persecution
may take various forms, such as harassment, violence, forced psychiatric
treatment, or prosecution for homosexuality or a trumped-up crime
such as “hooliganism.” It does not need to have come directly from
the government. For example, gays and lesbians from various countries
have won asylum by showing that their government failed to protect
them from antihomosexual street violence. Lesbians and gay men from
Bangladesh, Brazil, China, Cuba, El Salvador, Eritrea, Ethiopia, India,
Iran, Mexico, Nicaragua, Syria, Turkey, and other countries have been
granted asylum.
After coming to the United States—perhaps on a visa waiver or
tourist visa—your lover would need to apply for asylum quickly, because
applications for asylum are accepted for only one year after a person
enters the United States or the visa stay expires. We recommend that you
get a lawyer’s help for this. If money is a problem, many organizations
offer free or low-cost help with asylum applications. Winning political
asylum would give your lover a right to remain in the United States for as
long as the situation is risky overseas—or permanently, if he or she applies
for a green card one year after the asylum application is approved.
Adoption. Could you adopt your lover and apply for a green card on
that basis? It’s a creative idea, but doomed even before you get to the
fraud problem. Children must be 16 or under to qualify for a green card
based on adoption.
Visa lottery. Officially named the Diversity Immigrant Visa Lottery,
this program offers green cards, by random drawing, to people from
countries that in recent years have sent the fewest numbers of immigrants
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to the United States. Anyone can enter the lottery if they are a native
of one of these countries and have either a high school diploma or a
minimum of two years’ experience in a job that normally requires at least
two years of training or experience. One of the latest requirements is
purely technological: Applicants now must submit their applications via
the Internet and attach a digital photo. There are 50,000 winners selected
per year.
One of the unpleasant secrets of the lottery program, however, is
that many people “win” but are unable to collect on their green card,
owing purely to U.S. government delays. If winners don’t complete
the application process by a certain deadline, including providing
additional forms and documents and attending an interview with a U.S.
immigration official, they lose their chance, period.
Resource
For more information on entering the lottery, see the U.S. State
Department website at www.travel.state.gov. Click “Diversity Visa (DV) Program.”
Employment-based green card. If your new lover has job skills that are
in short supply in the United States, an employer may act as a green card
sponsor. Your best bet is a large employer that has dealt with immigration
matters before and has ongoing contact with an immigration attorney.
This is a long and difficult process, but the end result is the permanent
right to live in the United States.
Temporary employment visa. Someone who has high-level job skills and
can find an employer willing to make a job offer may qualify for one of a
variety of temporary work visas. The most well-known of these visas is the
H-1B, for workers in specialty occupations requiring at least a bachelor’s
degree or its equivalent. Another visa, known as the O-1, authorizes
entry to persons of extraordinary ability in the sciences, arts, education,
business, or athletics. The P visa authorizes entry for internationally
recognized athletes and entertainers. For a full list, see the Immigration
section of Nolo’s website at www.nolo.com. Unfortunately, laborers,
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domestic workers, and other nonprofessionals won’t find any helpful
possibilities on this list.
Student visa. Anyone admitted to a U.S. vocational or academic
school—which shouldn’t be hard to arrange—can apply for a student visa
(F-1 or M-1) that will cover the entire length of the school program. The
difficult parts about this are usually proving to the U.S. government that
the immigrant has enough money to fund the entire stay and plans to go
home at the end.
Exchange visitor visa. If your partner finds a program organizing
exchange visits, usually for academic or research purposes, a J-1 visa is a
possibility. The primary disadvantage to this visa is that it often comes
with a requirement that the immigrant go back home for two years before
applying for any other visa or a green card.
Countries With Residency Rights for Same-Sex Partners
The rest of the world is moving much faster than the United States in
offering immigration rights to same-sex partners. A number of countries,
predominantly in Europe, now allow the noncitizen or nonresident partner
to apply for permanent residency based on the relationship. Typically, the
couple must have first entered into a civil union or lived together for a set
period of time (usually two years).
Here are the countries that currently allow permanent residency or other
significant immigration benefits through a same-sex partner. However, this is
a rapidly changing legal area, so for details on a particular country, or to see
whether a country has joined the list, contact a local gay rights organization.
Australia
Belgium
Brazil
Canada
Denmark
Finland
France
Germany
Iceland
Israel
Netherlands
New Zealand
Norway
Portugal
South Africa
Spain
Sweden
United Kingdom
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See an expert
Immigration law is highly complex and the USCIS policies are in flux
currently. After doing your own research, you may want to seek help from a gaysensitive immigration attorney. For information and referrals, contact one of the
lesbian and gay legal organizations listed in Chapter 11, or Immigration Equality
at www.immigrationequality.org—check out their FAQs. Other good resources
are the Transgender Law Center at www.transgenderlaw.org and the Immigration
Project at The National Center for Lesbian Rights at www.nclrights.org.
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