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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

Visa Denied

“I’m an American and I’m not totally free,” began the e-mail Denis Symington sent us:

I’m not equal. I’m discriminated against. I’m looked down upon.  I don’t have my rights, my equality and liberty and justice and all those other things that many years ago were beaten into my head in the fourth grade by Sister Mary Honoria.   The same words I was told make America such a special place in the world. They are denied to me by the U.S. government. They don’t apply to me—I’m gay….

That was a tough morning outside the stone gates of the U.S. Embassy in Moscow.  Disbelief, anger, frustration and tears consumed me as I sat there with the second Declined on my life partner’s passport.  He was in shock. I was speechless. We sat in silence for ages. 

We met nine years ago in a park in front of the Bolshoi Theater, just yards from Red Square.  A mutual friend introduced us and we began dating.  I was working for a U.S. company at the time, living in Moscow. My partner, Z., was a teacher of English in a local children’s school. …  We traveled all over the world, seeing the sights and discovering more about each other.  We even traveled to the U.S. a few times to visit my family. … We even have a picture together in front of the Statue of Liberty.  A fact that is enormously ironic. Give me your poor, your tired, your weary—blah, blah—just don’t give me your self-supporting, committed, long-term, gay partners of nine years.

I transferred back to New Hampshire with my company; we secured a student visa for my partner Z.  We built a house, in Dover, New Hampshire.  Z. was enrolled in a technical college, we were active in the community, we started saving for our future, a long life we had planned together.  This was at the six-year point of our relationship.

Z. needed to renew his passport in Moscow and see his son and family.  This required that his new passport have a new student visa so he could continue with the two remaining years of his surgical technology studies. Then it happened.

I got the phone call at 6 a.m.  He could not breathe. … Tears filled his words, then mine.  I sat on the bathroom floor as I listened to him recount the previous few hours.  Our life was so good till that point, committed and secure.  Now it was held over a chasm of uncertainty and tough decisions. 

The U.S. Embassy in Moscow decided his surgical technology program was not a reason to study in the US, and he should pursue this program in Russia.  Denied. … How could my government do this to me?

Denis flew to Moscow to be with Z., and to help him appeal.  They “were denied again by the same clerk, who wanted to hear nothing about us, our life together, our home. She just kept calling for the next person in line.”

Eventually, the couple was able to resettle in the U.K. together.  Denis writes that they wait for one thing—the passage of the UAFA:

I am so grateful to the British for this opportunity, but this is not home. Not a day goes by that I don’t want to go home to my house in Dover, drive my car, spend weekends with my sister, see our friends. I log on every day reading Yahoo News, expecting to see by some miracle this bill was passed and I can walk down to the U.S. embassy in London with Z. and get his green card.  We can move back to my homeland—move into our house—work and get on with our lives.  One day it will come.  But when?

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.

Life on an H1B Visa

Robert, a U.S. citizen, and his partner Adam, who is Canadian, had been together for twelve years when they wrote to us.  For six of those years, Adam had been able to stay in the U.S. on a student visa while studying music.  At the end of that time, Robert says, “We exhausted student visa options.”  Adam, however, is one of the comparatively lucky ones: he managed to get an H1B work visa as music director for a local church. 

Not only did this visa cost us $12,000 in legal fees to obtain, we spent two agonizing years of worry and despair waiting for the INS to adjudicate the case, due to major bureaucratic bungling on the agency’s part.  H1B has a maximum length of six years, and must be renewed after just three.  We are currently beginning the renewal process, and hoping for the best, but at the end of the six years, Adam is legally required to leave the United States for a period of not less than one year. What kind of life can we build together, with so little hope of stability, and no real security?

For four years now, they have lived in the small New England town where Adam works.  Adam is an accomplished harpsichordist and organist and a respected scholar of early music.  But, Robert explains,

Competition for teaching positions is fierce.  Adam’s non-resident status puts him at a distinct disadvantage … because every prospective employer must obtain a separate visa if they wish to hire him.  As for his performance career, he is required to obtain a special visa for each and every paid gig, and this visa can only be obtained at a border station. The absurd situation of having to travel five hundred miles round-trip to the Canadian border station, in order to play a $300 gig right here in our town, leaves two choices: non-compliance accompanied by worry and guilt, or no gigs at all. Due to this lack of parity with his peers, Adam’s professional development is severely restricted and stunted.

Robert adds,

I am a United States citizen and yet am denied the basic right to sponsor my immigrant partner for U.S. residency.  This is clear and blatant discrimination.  Our small town is a patriotic town, due in part to its claim of hosting the longest running Independence Day parade in the country.  On the Fourth of July, the climax of the calendar year here, when that parade comes down the street, how do you think I feel? I love my country, yet the revelry of the crowd rings empty for me, because it celebrates, in part, that fundamental freedom, the pursuit of happiness.  Current immigration law excludes me, in a very real way, from that pursuit.

From an e-mail to Immigration Equality from Robert and Adam (names changed at their request), August 22, 2003.


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.

[81] Human Rights Watch/Immigration Equality interview with Nathalie Fuz and Kelly McGowan, New York, October 14, 2005.

[82] Human Rights Watch/Immigration Equality telephone interview with Barbara and Susan (last names withheld at their request), October 11, 2005.

[83] Human Rights Watch/Immigration Equality interview with Rafael Jaen and Stephen Brady, New York, March 25, 2005.

[84] Human Rights Watch/Immigration Equality interview with Marta Donayre and Leslie Bulbuk, Oakland, November 11, 2005.

[85] 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. 811–841.

[86] 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.

[87] 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.

[88] In discussing B visas, it is important to note that in one relatively minor way, U.S. immigration policy does recognize same-sex partners—though 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 visitor’s, 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 ways—denying 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.  

[89] 9 U.S. Department of State, Foreign Affairs Manual, Notes to 22 CFR Sec. 41.31.

[90] 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 visa—with 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, retrieved January 4, 2006.)  Nations entering under the program are still subject to screening at the port of entry.

[91] 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 Pleasure—The 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.

[92]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).

[93] Carl Falstrom, “The B-2 Visitor for Pleasure—The Most Issued Visa,” Immigration and Nationality Law Handbook, 2001-2 Edition

[94] It is important to note that no visa in itself authorizes entry to the U.S. It simply indicates that the holder’s 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 process—first, 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 visa’s terms—have never overstayed or worked illegally—if (for example) an immigration official believes he or she has been spending too much time in the United States.

[95] 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

[96] 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. 

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