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 itor do not.
Most U.S. citizens know nothing about what foreign nationals face to enter or stay in the United States. People dont 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 theyre within a binational relationship, nobody understands it. Not just the mainstream, but within our communitythe lesbian, gay, bisexual, and transgender community. Yet daily incidents remind you that you dont 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 its your life, youre researching it constantly, researching always, because its 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 wellwhich 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 someonethe love of your life. You share dreams and ambitionsand the same sex. What you dont 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.
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 partners 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 membersparents, spouses, children or siblingsfor 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 flawedlimited 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 partnershipyour familydoes 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:
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 partners part but on the employers. 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 lawto 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 chancebut you are submitting your shared future to the throw of the dice.
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 visitors visain 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 Manualthe U.S. State Departments 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 processand 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 interviewand 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 intentwhich 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:
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 returna sort of hostage to ensure he doesnt 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 suspectwhether rightly or wronglythat 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 visitors 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 obtainfor anyone, straight or gay. The H1B, the most common work-based visa, requires verifying the applicants 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 discriminationbecause they are lesbian, gay, bisexual or transgender or for any other reasonbut 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 visastourist or work-basedis 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.
It may be that in your partners 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 persecutedtheir safety or freedom threatenedbecause 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 safefailing to see that concealing a crucial part of ones 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.
 Human Rights Watch/Immigration Equality interview with Nathalie Fuz and Kelly McGowan, New York, October 14, 2005.
 Human Rights Watch/Immigration Equality telephone interview with Barbara and Susan (last names withheld at their request), October 11, 2005.
 Human Rights Watch/Immigration Equality interview with Rafael Jaen and Stephen Brady, New York, March 25, 2005.
 Human Rights Watch/Immigration Equality interview with Marta Donayre and Leslie Bulbuk, Oakland, November 11, 2005.
 Rep. Raymond McGrath, quoted in Chris Duenas, Coming to America: The Immigration Obstacle Facing Binational Same-Sex Couples, Southern California Law Review, vol. 73 (2000), pp. 811841.
 This type of visa is sometimes called a hybrid visa. Strictly speaking there is no hybrid category; however, the term has come to be used for these visas because they allow short-term non-immigrant entry, but quick conversion to immigrant status.
 Immigration and Nationality Act, sections 101(a)(15)(k) and 214(d). In addition, the K-2 visa allows entry to the dependent minor children of a fiancé. In 2000, the Legal Immigration and Family Equity Act (the LIFE Act) also extended K visa benefits to the spouses of U.S. citizens, and their unmarried children under age 21, who are outside the U.S. and awaiting the processing of their green card petitions.
 In discussing B visas, it is important to note that in one relatively minor way, U.S. immigration policy does recognize same-sex partnersthough without any benefit to binational couples. A foreign national who comes to the United States on a long-term non-immigrant visa is eligible to bring his or her foreign cohabiting partner on a B-2, or visitors, visa. This policy was set out in a ruling by the INS in 1993. It was formalized by the State Department in 2001, in a cable stating: B-2 classification is appropriate for cohabitating partners of long term non-immigrants The [Foreign Affairs Manual] is being advised to expressly incorporate this interpretation. (Document R 091817Z Jul 01, Cable from SecState WashDC to All Diplomatic and Consular Posts, UNCLAS State 118790.)
It is not clear that lesbian and gay partners were originally meant to benefit from this policy. Other eligible individuals include extended family members and other household members not eligible for derivative status (ibid.): it is reasonably clear that the INS mainly meant to make it easier for foreign workers on long-term visas (such as well-paid executives) to bring domestic help as well as non-dependent relatives from home. Derivative status, referred to above, is designed to maintain family unity for long-term non-immigrants. If an individual is approved for a long-term international employee visa, his or her different-sex spouse is eligible, along with their children, for derivative status. This confers the same immigration benefits on the family members as does the principal visa. Lesbian and gay permanent partners of long-term non-immigrants do not qualify for derivative status. The Foreign Affairs Manual states, Unless the relationship is recognized under law as being fully equivalent in all respects to traditional legal marriage and grants the parties all the same rights and duties as a traditional marriage, the cohabitating partner cannot qualify for derivative status. However, the Manual continues, such aliens may be classified as B-2 visitors, provided they are otherwise qualified for B classification. This is true for both opposite and same-sex partners. (9 U.S. Department of State, Foreign Affairs Manual, Notes to Sec. 40.1)
To lesbian and gay immigrants, it is a clear that the government is trying to have it both waysdenying recognition to their partnerships broadly, but permitting a small but convenient exception. Moreover, by carving this loophole, the government shamefacedly shows it has no across-the-board, consistent rationale for categorically denying immigration rights to partners in same-sex relationships.
 9 U.S. Department of State, Foreign Affairs Manual, Notes to 22 CFR Sec. 41.31.
 In 1986, the U.S. created a Visa Waiver Program for which twenty-seven countries (mostly European) are now eligible. The program allows nationals of these countries to visit the U.S. for tourism or business for ninety days without obtaining a visawith the aim of promoting better relations with U.S. allies stimulating the tourism industry, and permitting the Department of State to focus consular resources in other areas. (Visa Waiver Program [VWP], at http://travel.state.gov/visa/temp/without/without_1990.html, retrieved January 4, 2006.) Nations entering under the program are still subject to screening at the port of entry.
 One expert has written that The B-2 visa category can be one of the most complex and difficult because the issues and factors involved in the decision are almost entirely subjective. Carl Falstrom, The B-2 Visitor for PleasureThe Most Issued Visa, Immigration and Nationality Law Handbook, 2001-2 Edition, American Immigration Lawyers Association (AILA). For several years, Representative Barney Frank (D-MA) has proposed legislation to create an appeals board for consular decisions.
The law states: Every alien shall be presumed to be an immigrant until he established to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to non-immigrant status: Immigration and Nationality Act § 214(b).
 Carl Falstrom, The B-2 Visitor for PleasureThe Most Issued Visa, Immigration and Nationality Law Handbook, 2001-2 Edition.
 It is important to note that no visa in itself authorizes entry to the U.S. It simply indicates that the holders application has been reviewed by a U.S. consular officer, and that the officer found him or her eligible to travel to the port of entry for a specific purpose. In other words, each entry to the United States for a foreign national is a two-step processfirst, obtaining a visa (which allows getting on the plane but does not guarantee getting across the border), and, second, passing inspection at a U.S. port of entry. Anyone can be denied entry with a valid visa, even if they have always complied with the visas termshave never overstayed or worked illegallyif (for example) an immigration official believes he or she has been spending too much time in the United States.
 Examples include the H1B visa and the E visa. An H1B visa is available to specialty occupation workers, such as fashion models or professionals who need a license for their work. An E-1 visa is for people involved in substantial business trade between the U.S. and their country. E-2 visas are available for people who have invested substantial money in a business they direct in the U.S
 In 1989 Fidel Armand Toboso-Alfonso, a Cuban citizen, claimed refugee status in the United States because, as a homosexual, he was persecuted at home. He was granted withholding of deportation, and the Board of Immigration Appeals (BIA) upheld the decision in 1990. In 1994, then Attorney General Janet Reno ruled that this case be considered a precedent, meaning that asylum officers, immigration judges, and the BIA had to accept its example in the future.