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For Gay and Lesbian Couples "Immigration" is a Dirty Word

From Jennifer Leavitt-Wipf,
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Unlucky in Love: The USCIS Doesn't Recognize Domestic Partnerships

A Common experience for gays, lesbians
"I could feel my head start to pound and my mouth go dry when they told me there was nothing I could to do sponsor him," says Rob. "I am a citizen. I pay taxes. And it's just too late now. We're together. He's here...... I never thought I'd be harboring an illegal alien."

It's inevitable. Every morning when we go to read our e-mail, we find that some unsuspecting soul is about to revisit the school of hard knocks for gay and lesbian couples. Sometimes the e-mail is from an American citizen who has fallen for a Latin lover. Other times it's from a foreign national who has just received his H-1B working visa for the job of a lifetime and wishes to know how to go about applying for his life-long partner to accompany him. The short answer is: He can't.

Every year hundreds of thousands of people turn down jobs, suffer economic and emotional hardships, move out of the U.S., or become illegal aliens because U.S. immigration laws refuse to acknowledge same-sex relationships and the families that are increasingly based on them.

"She's their other mom," says Dawn, a woman whose live-in lover has a soon-to-expire working visa. "If she goes my kids are going to bawl for weeks. They'll never be the same. Neither will I. We can't just break up our family."

Even heterosexuals often face immigration problems
If the notion of "gay immigration" sounds funny to heterosexuals and others deeply involved in the immigration process, it's because even legally-wed couples wait one to three years for the alien spouse to get a green card. Permanent residents are kept from their spouses and children for up to four years. "But at least there is hope in site for heterosexuals," one of our forum posters points out.

In most cases, that is true, unless the foreign spouse has a criminal record or the American citizen or permanent resident cannot provide financial support. In addition, those with serious communicable illnesses are barred and common law marriages are not recognized at all by the USCIS.

The former poses a problem for HIV-infected partners and the latter is the official USCIS (former INS) excuse for why immigration based on same-sex marriages simply doesn't exist.

"It's just not allowed, not for heterosexuals, not for homosexuals, not for anybody. It has nothing to do with sexual orientation," says immigration specialist Allan Whitte, who maintains that the U.S. will never have an immigration category for domestic partners.

Other countries offer immigration, based on domestic partnerships
But many other countries already do, including Canada, France and Australia. So much for the notion that the United States is the easiest of the popular countries to immigrate to. (Of course anyone familiar with the process in any capacity has already met with the reality).

So what can a binational same-sex couple do to live together in the U.S.?

Finding another way to immigrate
Most couples naturally look first at family sponsorship: If the foreign partner has immediate family in the U.S. they can immigrate that way. The next most popular avenue is work sponsorship: H-1Bs and L visas are for those with degrees or the equivalent and who are in specialty or executive positions. H-2Bs are for skilled and unskilled workers and take far longer. (For Canadians trying to migrate to the U.S., there are slightly easier allowances and options.) Then too, those who have achieved international acclaim in their field may opt to self-petition as individuals of extraordinary ability, or, if they have a substantial amount of money, they can immigrate as investors. (For more information on these and other options, see our green card and visa section.)

An alternative route is that of asylum. If the foreign partner comes from a country where homosexuals are politically or criminally persecuted, that individual just might qualify, but with growing awareness of this possible option, the number of applicants is increasing and it becomes more and more difficult to obtain.

Of course, the majority of aspiring immigrants will not fall into any of these categories--and until and unless gay marriages are legally recognized--they will continue to be faced with some pretty bleak prospects. Nevertheless, progress has been made over the past few decades.

Homosexuality: Once a basis for exclusion
Until 1991, homosexuality was grounds for exclusion from admission to the United States, because gays and lesbians were classified as "sexual deviants" under the Immigration and Nationality Act of 1965. The Immigration Act of 1990 saw triumph for gays and lesbians as they were removed from this category.

That was the first round, hard won. Now for the second.

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