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The ABCs of Immigration - Options for Gay and Lesbian Couples
by Greg Siskind and Amy Ballentine

As the world becomes a smaller place through globalization, more and more people are traveling abroad, for pleasure, for school, and for employment. One result of this change has been an increasing number of marriages between people of different countries. For the majority of US citizens in a relationship with a foreign national, the answer is straightforward – get married and file an application for a green card for the spouse. For some, however, there is no clear answer.

Because federal law recognizes marriage as existing only between a man and a woman, a US citizen cannot petition for a green card for a same sex partner. This is true even if the couple has entered into a legally binding arrangement, such as the civil unions now performed in Vermont, or other similar domestic partnerships found in other countries. For the past two years, legislation has been introduced in Congress that would allow US citizens to petition for same sex partners, but given the anti-homosexual bias that is dominant in Congress, such legislation has little hope of passage. So people in a gay or lesbian relationship with a foreign national face extreme difficulty in remaining together.

In this article, we outline some of the ways people in such a predicament can stay together. Detailed information on the visa categories mentioned below is available in other ABC’s of Immigration articles which can be found online at http://www.visalaw.com/abcs.html.

Student visas

Assuming that they otherwise qualify, the foreign national can enter the US on a student visa. They must, of course, comply with the terms of the visa, and the visa will eventually expire, meaning that the person must either leave the US or find another visa status.

Work visas

Work visas allow a person to live and work in the US for, in some cases, an indefinite period of time. The primary drawback to most common work visas is that they allow the person to live in the US only for a limited period of time. For example, the time limit on H-1B visas is six years and for L visas it is five or seven years. There are some work visas that may be renewed indefinitely. The O visa for people of extraordinary ability can be issued in three-year increments for an indefinite period of time, as long as the visa holder is doing work in the area of their extraordinary ability. The E visa, for people making an investment to start a business in the US, can be issued in five-year increments for an indefinite period. TN visas for Canadian and Mexican professionals can also be renewed without limit.

Regardless of how long a person can live and work in the US on a work visa, however, there will always remain the fact that they are not permanent residents, and could be separated from their loved one on the whim of an employer or a down turn in economic conditions.

Green cards

Because a US citizen in a same sex relationship with a foreign national cannot file for his or her immigration, the foreign national has to seek a green card through another route. If they have a qualifying family member (for example, a US citizen parent or sibling) the family member can apply for their immigration. This is, however, a long process. Currently (March 2001), immigrant visas are being issued for unmarried adult children of citizens in cases filed in March of 1999. For applications made by a sibling, visas are being issued in cases initially filed in October of 1989. Permanent residents can file for their adult children, but in these cases visas are being issued for applications initially filed in June of 1993.

Often, a quicker way of obtaining permanent residence is through an employer who is willing to sponsor the foreign national.

The foreign national can also apply for a green card through the diversity visa lottery if they are from a qualifying country. Given that only 50,000 visas are available each year and the fact that there are millions of applicants, this is by no means a sure way of getting a green card.

Asylum

A final way that the foreign national in a same sex partnership can remain in the US is through an asylum application. In recent years asylum claims on the basis of persecution because of one’s sexual orientation have become more widely accepted. However, such cases are more difficult than most asylum cases, and require substantial proof of persecution.

The bottom line is that couples in same sex relationships must be creative in devising workable visa strategies. If you are interested in learning more about immigration issues that affect the gay and lesbian community, visit the website of the Lesbian and Gay Immigration Rights Task Force at http://www.lgirtf.org.


About The Authors

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


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