Baby, please don't go!

July 21, 2012 6:05 PM

My friend was offered a job several months ago, but the company screwed up his immigration paperwork and... yada yada yada, he may get deported in a month. Oh, and he's gay. How can I help?

My amazing friend has been on a student visa for the last ten years or so. He's from Hong Kong and has been in a committed relationship with his (male) partner, an American, for several years. He has contributed to our community in a ton of demonstrable ways and has a lot of supporters at all levels.

The way he described it, someone in HR left the company and/or dropped the ball, at least three months ago. The company is used to dealing with international folks, but (having worked for them myself) they are notoriously slow and somewhat flippant. During that time the United States basically reached its quota of the number of corporate visas it could offer. I believe he was told that they usually reach the year's quota in April or May. I think there were some issues at the INS as well.

I'm guessing an immigration lawyer could help here, but if the paperwork is stuck in bureaucratic hell, is there anything I or others could do to help him get it through? If I have connections to our federal legislators, could that help? Who else might be able to help quickly? (I saw some previous questions suggesting contacting the National Center for Lesbian Rights, but this situation seems simultaneously too serious for their info sheets and not serious enough for their legal support.)

posted by Madamina to law & government (9 answers total)

Does he live in a state where he can marry his partner?
posted by sebastienbailard at 6:12 PM on July 21, 2012

Immigration Equality. Even if he could marry his male partner, DOMA prevents citizenship. Call Immigration Equality and get a lawyer.
posted by roomthreeseventeen at 6:15 PM on July 21, 2012 [1 favorite]

Does he live in a state where he can marry his partner?

Even though DOMA's days are numbered, a gay person marrying their partner receives no benefits for permanent residency but still does get dinged with "intent to overstay visa." It can only hurt your chances. Your friend needs a lawyer.
posted by gerryblog at 6:48 PM on July 21, 2012 [3 favorites]

It sounds like the company was applying for a h1b for him. If that application wasn't in (and accepted?) by June 11, when they stopped accepting applications, then I'm pretty sure he can't get one this year and should be looking at other visas he might qualify for. I don't think an argument that the company/the government messed up his paperwork will get him anywhere, but I'm not a lawyer.
(note, the INS doesn't exist any more, its the USCIS now.)
posted by jacalata at 6:53 PM on July 21, 2012 [1 favorite]

When was his last day as a student? If it was less than 60 days ago, he might qualify for OPT. That's what students usually do when they have missed the quota cap for H1B.
posted by bread-eater at 10:11 PM on July 21, 2012

Is there any asylum angle on being a gay man in HK or China in general? Not sure what the attitudes are over there.
posted by Sunburnt at 12:50 AM on July 22, 2012

(having dealt with more than my fair share of this) I don't believe there's any way his being gay can do anything other than hurt his situation. There is no "asylum angle" and the only thing marrying his partner will get him is a spot on a leaflet about how disgustingly the US treats gay couples re immigration. It's faintly possibly the situation will change sometime soon, but I wouldn't count on it.

Your friend needs an immigration lawyer to figure out WTH happened with his company and how to fix it.

And IANAL, but I strongly suggest he doesn't leave the US or marry/CP his partner until this is sorted out.
posted by crabintheocean at 1:08 AM on July 22, 2012

I believe he was last a student in the fall semester of last year, so OPT probably won't be in the cards.
posted by Madamina at 9:27 PM on July 22, 2012

IANYFL. Find out when his OPT expires, if it hasn't already. If he graduated with a STEM degree and didn't already request a 17-month extension, then he needs to do that. If he's not eligible for a STEM extension, then he can stay in the U.S. until 60 days after his OPT expires.

What is his company saying about this situation anyway? Most of my clients (employers) give their foreign national employees a clear roadmap once the H-1B cap has been filled. They might rescind the offer, sending the foreign national to work at an office in his home country in the meantime. They might defer the offer until the H-1B cap is open the following year. If your friend's prospective employer still intends to employ him, then he needs to clarify with them what their plan for him is.

Otherwise, your friend may want to consider enrolling in another degree program (and thus continuing his stint in the U.S. as an F-1). He might be able to get some part time work authorization as a student, and then maybe a prospective employer will be willing to file another H-1B petition for him come next April.
posted by snafu at 6:03 PM on July 24, 2012