Report spotlights GLBT immigration challenges
House bill seeks to allow U.S. citizens to sponsor foreign same-sex partners
Published Thursday, 18-May-2006 in issue 960
During national protests against the United States’ immigration policy, two human rights organizations released a 191-page report on May 2 to emphasize and spotlight the plight of same-sex binational couples.
The report, “Family, Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples under United States Law,” compiled by Human Rights Watch and Immigration Equality, was based on research conducted between 2003 and 2006.
“Our immigration laws are undermining the traditional American values of fairness and family,” said Rachel B. Tiven, executive director of Immigration Equality. “United States immigration policy is designed to keep families together. But the current law targets an entire class of American families and tears them apart.”
The report states that the 2000 U.S. Census estimate of 35,820 same-sex binational households does not include couples who hide the fact they’re partners because they fear homophobia in the immigration process, as well as those couples who avoid the census altogether because their foreign partners may live here illegally in order to maintain their relationships after their visa expires.
The report also features the stories of many couples who are affected by U.S. immigration policies that overlook same-sex binational couples completely.
The facts about the U.S.’s current visa and immigration system are outlined within the report and explore how GLBT people either fit into the system or do not.
Visas are classified into immigrant visas or non-immigrant visas. Immigrant visas consist of either family-based or employment-based visas where a U.S. family member or possible employer must file a petition on behalf of the non-U.S. citizen. If approved by U.S. Citizenship and Immigration Services, the person will have to apply for lawful, permanent residency. The person then receives a card and becomes a lawful resident who has the right to live and work in the U.S. permanently. This is referred to as a green card.
A K-1 visa allows the intended spouse of a U.S. citizen to enter the country for 90 days in order to marry him or her and then apply for permanent residence.
“Obviously, lesbian and gay couples are not eligible for K-1 visas because of the ‘valid marriage’ criterion. Even if they have a bona fide intention to marry, their marriages are not recognized by U.S. law,” the report states.
Non-immigrant visas consist of non-employment-based and employment-based visas and do not offer a path to permanent, legalized status. Visitor visas only allow a visitor entrance into the U.S. for up to six months.
San Diego’s Nadine Jernewall and Sze Tan, a binational couple, have been active members of Equality California’s San Diego chapter. They met over three years ago online as friends and a romantic relationship blossomed shortly thereafter.
“We were amazed at the connection we felt with each other and decided that we had to be together despite the odds we faced ahead of us,” Jernewall said, referring to the fact that Tan is not a U.S. citizen and first came to the U.S. on a student visa from Malaysia.
Jernewall said the biggest challenge they face as a binational couple is living with uncertainty on a daily basis.
“Our being together is contingent upon Sze keeping her job with an employer who is willing to sponsor her working visa,” Jernewall said.
Tan, who works as a software engineer, is now with an employer who is willing to sponsor her for a green card. Jernewall said Tan is lucky enough to be well-educated and to possess job skills deemed important to the U.S. economy, but many other people are not so fortunate, and are unable to obtain work visas. The couple does not know how long the process will take for Tan to receive her green card through her employer.
“It could be a year. It could be four years. While we feel lucky to even have this, it is still hard to plan a future when all this stuff is so up in the air,” Jernewall said. “If her company had to lay her off or something, we’d be back at square one.”
The couple considered emigrating from the U.S. to Canada in order to remain together as a couple, Jernewall said.
“While Canada is a beautiful country, it was very difficult to accept that I, as a U.S. citizen, would have to leave my country and family in order to stay with my partner,” she said. “This is not something that heterosexual couples ever need to consider, since immigration laws recognize them as a family. The U.S., unfortunately, regards us as strangers when it comes to immigration. Our family is deemed unworthy of protection.”
One large part of giving binational same-sex couples some of the same rights as their heterosexual counterparts is the passage of the Uniting American Families Act (UAFA), HR 3006, formerly known as the Permanent Partners Immigration Act. If passed by Congress, the bill would allow U.S. citizens and lawful permanent residents in binational same-sex relationships to sponsor their foreign-born partners for immigration to the U.S.
The UAFA failed in the last congressional session and was introduced to the current Congress in June of last year. It now has 110 co-sponsors from both houses.
“It’s never made it out of judiciary committee, not for lack of trying, but the prevailing political winds aren’t particularly in favor of the Uniting American Families Act,” said Adam Francoeur, program coordinator for Immigration Equality.
Anthony White lives in San Diego, but his partner of 14 years lives in Tijuana, Mexico, and visits him on a tourist visa. White said if the UAFA became law it would certainly make things easier for them, but he does not think it will with the current presidential administration. White said even if same-sex marriage became legal in all 50 states, federal immigration law still trumps state law.
“It doesn’t matter, even if it’s recognized,” he said. “In fact, they can actually have legal marriage in every single state in the union, [and] they could still on a federal level not allow people to sponsor their spouses.”
The UAFA has been referred to the judiciary committee of the Senate and House of Representatives. It would need to clear the judiciary committees of both houses before moving on for debate on each floor, and then must be signed by the president to become law, Francoeur said.
The UAFA would add the term “permanent partner” to sections of the Immigration and Nationality Act (INA) where “spouse” currently appears. A U.S. citizen or permanent resident could then sponsor their permanent partner for immigration to the country, just as they can now sponsor their family members as siblings, children or husbands and wives as part of the family reunification portion of U.S. immigration policy.
“It is incredibly important to families like ours because it would mean that we could finally stop living in uncertainty and jumping through hoops to be together,” Jernewall said. “Unfortunately, this bill has been around for awhile and hasn’t gotten the support that it needs to move ahead into law. It just isn’t a priority in Congress.”