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III. Closed Doors: Visas and Immigration

This chapter gives basic facts about the visa and immigration system and how lesbian, gay, bisexual, and transgender people fit into it—or do not.

Most U.S. citizens know nothing about what foreign nationals face to enter or stay in the United States.  “People don’t realize the implications” of the immigration process, says Nathalie Fuz, a French national living in New York with her U.S. partner Kelly McGowan.  Nathalie, who owns two retail stores in the city, is able to stay, temporarily, on an employment visa.  However, she says, “Unless they’re within a binational relationship, nobody understands it.  Not just the mainstream, but within our community”—the lesbian, gay, bisexual, and transgender community.  “Yet daily incidents remind you that you don’t have rights, not only as someone gay, but as a binational couple.”⁸¹

Yet, says Barbara, who lives in Massachusetts with her U.K. partner Susan, “When it’s your life, you’re researching it constantly, researching always, because it’s very hard to keep up with all of the current information.” ⁸²  Rafael Jaen, a Venezuelan and an internationally known costume designer, has an O-1 (outstanding ability) visa letting him stay in the U.S. with his partner of ten years, Stephen Brady.  He says, “My whole life is organized around my visa status and everything I need to do to keep the visa.”⁸³

The unequal treatment of lesbian and gay partnerships is only one among many interlinked inequities riddling the immigration system.  Marta Donayre, co-founder of Love Sees No Borders, a group for binational gay and lesbian couples, points out:

Women have a harder time coming to the country.  To get a tourist visa, you have to prove that you have ties back home.  Women are less likely to have bank accounts or own property, so it is harder for them to qualify.  Third World status makes it far more difficult as well—which is about race and also is about economics: so in immigration policy, you clearly see the intersection of race, gender and class at work.⁸⁴ 

 Leslie Bulbuk and Marta Donayre, 2006 © 2006 Private

The system is both extremely complex and pitched towards the estrangement of couples.  We ask readers to try an experiment in the ensuing pages.  Whoever you may be, imagine this: you are a U.S. citizen who, traveling abroad, has met someone—the love of your life.  You share dreams and ambitions—and the same sex.  What you don’t share is citizenship; he or she is not from the United States. You have gone home after a period together overseas; but the two of you plan to be reunited, as soon as your partner can join you in the U.S.

This may actually be your story, in which case the coming pages may ring true.  If it is not, you may learn some unexpected facts.

Exploring Immigrant Visas

We Are (Not) Family

Immigrant visas offer foreigners permanent residence in the U.S.—obviously your first choice, since the two of you want to be lastingly together.  Most immigrant visas are either family-based or employment-based; in either case, a U.S. family member or possible employer must file a petition on your partner’s behalf.  If U.S. Citizenship and Immigration Services (the agency which used to be called the Immigration and Naturalization Service) approves it, your partner will have to apply for lawful permanent residency.  A lawful permanent resident (LPR) receives a card giving the right to live and work in the U.S. permanently (called the “green card” because it used to be printed on green paper).

Here is the first problem. “Family reunification” lies at the heart of the U.S. immigration system.  U.S. citizens can sponsor family members—parents, spouses, children or siblings—for permanent immigration. About two-thirds of all immigrant visas are family-based.  During a recent debate on immigration reform, one Republican congressman declared, “Prolonging the separation of spouses from each other … is inconsistent with the principles on which this nation was founded.”⁸⁵

The family reunification system is flawed—limited in reach and plagued by backlogs which suspend some family members (especially sisters and brothers) in indefinite delay.  For you, though, it is irrelevant.  Your partnership—your family—does not count at all. Current U.S. law, particularly the Defense of Marriage Act, forbids recognizing same-sex permanent partners as “spouses” or family members for immigration purposes. The “heart of the system” suddenly seems heartless.

The denial is particularly galling when you learn about what is called a “fiancé(e) visa.”⁸⁶   The K-1 visa allows the intended spouse of a U.S. citizen to enter the U.S. for ninety days, to marry him or her and then apply for permanent residence.  The U.S. citizen must simply show that he and his (or her) partner:

• have met in person at least once in the last two years (exceptions are possible),
• have a bona fide intention to marry, and
• are “legally able and actually willing to conclude a valid marriage in the United States” within ninety days after the partner gets there.⁸⁷

Obviously, lesbian and gay couples are not eligible for K visas because of the “valid marriage” criterion. Even if they have a “bona fide intention to marry,” their marriage will not be recognized by U.S. law.  You also realize the only requirement imposed on opposite-sex couples in your situation is that they intend to marry and have met once in person.  You and your lover might have lived together for decades, or even married in countries where it is legal; it would make no difference.   

Employment-Based Immigrant Visas

The other option for your partner is immigrating to the United States to work.  This requires sponsorship by an employer in the U.S.  For nearly all employment-based immigrant visas, the employer has to show the government that there are no qualified U.S. workers to fill the position.

You begin looking for companies willing to sponsor your partner for an immigrant visa.  No luck.  Employment-based immigrant visas are very hard to get: all the types have strict limits on the number annually available, and all have rigorous qualifications.  (For example, one category is for people who invest $1,000,000 in a new U.S. business.)   It would demand perseverance and high standards of proof, not just on your partner’s part but on the employer’s.  Few companies can afford the time and effort.

Relationship Roulette: The Diversity Lottery

The 1990 immigration reforms which finally struck the ban on lesbians and gays entering the U.S. also created the “visa lottery.”  “Family reunification” means that a few countries whose nationals are already heavily represented in the U.S. may crowd most other countries out of access to immigration. To compensate, places in the visa lottery are reserved for applicants from the underrepresented nations. It is often called the “diversity lottery.” 

Many countries are not eligible for the visa lottery, and the number of slots is limited by law—to 55,000, against millions who apply.  Depending on where your partner lives, you may be able to place your hopes in the lottery as a last-ditch chance—but you are submitting your shared future to the throw of the dice.

Non-Immigrant Visas

This leaves you with an uncomfortable decision: to surrender the hope of permanence and find a temporary way for your partner to enter the country, so you can be together, if uncertainly, for a time.  This means investigating the non-immigrant visa options, which do not offer a path to permanent, legalized status.   They are of two main kinds: a) non-employment-based, non-immigrant visas; b) employment-based visas.

Single and Suspect, Coupled and Complicit

The most obvious option is the visitor’s visa—in technical terms, the B-1/B-2 visa.  The B-1 lets people enter the U.S. for up to six months for business, such as consulting with clients, meeting with business associates, or attending professional, scientific, or religious conventions.  B-1 visitors cannot get a salary from a U.S. employer.  The B-2 visa is similar, but is for “pleasure” travel.  B-2 visas allow a stay of up to six months for reasons such as tourism, visiting friends or relatives, rest, or medical treatment.  B-1/2 visas also do not let the holder work.⁸⁸  Other non-immigrant visas that also do not include work authorization are F-1 or student visas and J-1 or training visas.

You carefully check that your partner will not be doing anything wrong in using a tourist visa to visit you.  The Foreign Affairs Manual—the U.S. State Department’s guidelines for all its employees, consular officers included— endorses such uses for the tourist visa, stating: “B-2 visas are appropriate for individuals traveling to the United States for tourism purposes, or to make social visits to relatives or friends.”⁸⁹  

Still, there are particular burdens lesbian, gay, bisexual, and transgender people may face in the visa application process—and these leave you anything but confident.

To apply, your partner must ordinarily go to a local U.S. consulate.⁹⁰  The consular process can take time, and cost money.  It may mean facing a consular officer in an interview—and handing over the fate of your relationship to his or her discretion.⁹¹  Certain health conditions or a criminal record are grounds for rejection; so, too, is the suspicion of immigrant intent—which means a consular official, for any reason, thinks it likely your partner will not return home when the visit is over.  In fact, your partner is guilty until proven innocent.⁹²  He or she must prove:

• strong enough “ties abroad” (that is, in the home country) to give a “strong inducement to return,” such as a permanent job there, business interests, or close family members who remain at home;⁹³
• enough funds to afford the visit, so that your partner will not need—or want—to take unlawful employment while in the U.S.

The first requirement is often hard for lesbians and gays.  Suppose your partner is a gay man in his mid-twenties. The U.S. consulate will ask if he is married. If he were, his wife (assuming she did not plan to accompany him) would, in their eyes, give him reason to return—a sort of hostage to ensure he doesn’t try to stay in the U.S.   He does not have a wife, though.   Without a legally recognized married relationship at home, gays and lesbians may appear to consular officials as insufficiently “rooted” to return. 

The consular official may ask your partner why he is not married.  (Officials can ask any question they want.)  Should he say he is gay?   Should he mention his U.S. partner?   The very fact of having a relationship with a U.S. citizen works against lesbian and gay foreign nationals who try to visit.   The official is likely to assume he is actually seeking to stay in the U.S.  Frequently the very fact of being lesbian or gay is enough to arouse suspicion.  And yet if your partner misrepresents himself in any part of the application process, that can also be reason to deny the visa.

Further, tourist visas, as well as student and training visas, bar receiving wages while in the U.S.  Your partner must show enough money to pay her own way.   However, the law allows visa applicants to show they have a sponsor instead: a U.S. citizen or permanent resident who promises financial backing during the stay.  Unlike the sponsor for an immigrant visa, this need not be a family member.  Thus, you can do this for your partner.

Yet, for many LGBT people trying to enter the U.S., this very act of sponsorship can raise suspicion and cause the visa to be denied.  If consular officials suspect—whether rightly or wrongly—that the applicant is in a relationship with the sponsor, they may well assume he or she does not plan to return.⁹⁴

Employment-Based Non-Immigrant Visas

Instead of a visitor’s visa, you and your partner may decide to explore employer-sponsored non-immigrant visas.  These allow your partner to take a job in the U.S. with a U.S.-based company.⁹⁵  They are not a path to permanent residence (unlike the employment-based immigrant visas).  But just because of that, you assume they should be simpler to get than immigrant visas.

In fact they are hard to obtain—for anyone, straight or gay.  The H1B, the most common work-based visa, requires verifying the applicant’s relevant special skills as well as education or background in the area of employment.  If your partner has a college degree in sociology, she will be ineligible for an H1B if her proposed job is not directly related to that field.  This (and the cost of filing an application) shuts out many.

There is yet another problem.  If your partner actually is able to enter on a work visa, she can stay only so long as she keeps her job.  This makes it easy for employers to exploit foreign partners in binational couples.  Across the board and across the country, innumerable immigrants suffer severe abuses at work. Yet, for people who face workplace harassment or discrimination—because they are lesbian, gay, bisexual or transgender or for any other reason—but are doubly discouraged from reporting it because their relationship as well as visa depends on their employment, the disempowerment may be overwhelming.

However, the real difficulty you have with all the non-immigrant visas—tourist or work-based—is precisely their salient characteristic. They expire.  None of them offers your relationship the permanence heterosexual couples can take for granted. 

The longer they last, the greater the disruption and heartbreak when the time runs out.  Student visas can last the length of a college or graduate education, employment-based non-immigrant visas for three or six years.  If your partner has been lucky enough to get such a visa, you have likely built a life together in your new community.  You may have bought a home or had children, all while looking to a common future.  Yet, the longing to create intertwined lives may actually damage your chances to stay together.  People on visitors’, student, or training visas must maintain non-immigrant intent.  If immigration officials find out you have a permanent relationship in the U.S., that can be taken as intent to stay.  Bad luck or an unwitting mistake may mean that your shared happiness leads to your deportation.

Asylum

It may be that in your partner’s home country, lesbian, gay, bisexual, and transgender people face imprisonment or even death. 

For over a decade, U.S. policy has offered asylum to people who, in their own lands, are persecuted—their safety or freedom threatened—because of their sexual orientation.⁹⁶ There have also been some (though fewer) cases granting asylum based on gender identity, as well as cases granting asylum based on HIV status.  If your partner comes from a country where persecution of lesbian, gay, bisexual, and transgender people is regular and real, he or she may choose to claim asylum in the U.S.—not as a pretext to remain in your relationship, but in order to stay alive and free. 

Amid growing anti-immigrant pressure, gaining asylum has become harder for everyone.  However, certain factors particularly affect people making claims based on their sexual orientation or gender identity.   Under a 1996 law that tightened access to asylum, applicants have only one year after their arrival to file.  The fact that sexual orientation is protected in U.S. asylum policy is not well-known; some LGBT people do not hear about the possibility in time.  Some others are afraid to press a claim because of homophobia and possible violence in their own immigrant communities here.

Some asylum officers and immigration judges do not fully grasp issues of sexuality or gender identity.  They may treat your partner with sarcasm or contempt.  They may tell him or her simply to “keep it secret” at home and be safe—failing to see that concealing a crucial part of one’s self, like hiding a religious belief, is itself a form of persecution.  In places where repression of LGBT people is severe, their networks and communities often have been driven underground.  Getting information to support your asylum claim may be insuperably hard.

Finally, after exploring these many options, you know one thing: these questions, these constraints, all the separation, could have been spared if the U.S. government recognized your relationship with your partner.