Help bring hubby home

February 7, 2006 7:13 PM

ImmigrationFilter: my good friend is in a serious same-sex romantic relationship with a Bolivian man. They've been a couple for several years, and they would marry if it was possible. They would like to live together as a couple in the US. If they were heterosexuals, they would have wed by now. Since gay marriage isn't exactly recognized by the feds/Immigration & Customs Enforcement, can you help these lovebirds make their nest?

If you have questions for my friend that would help you answer this question, I'll forward them to him and then answer on his behalf.

posted by evariste to law & government (15 answers total)

What about a work visa? (requires job offer) How about a student visa? (requires studying) What about the green card lottery? (closed until October/November)
posted by crazycanuck at 7:28 PM on February 7, 2006

I was curious about the repercussions for a homosex couple — having legally married in the Bay State — then applying for permanent residence. Googling led me here — it seems the answer is a clear thumbs-down.

Figures.
posted by rob511 at 7:43 PM on February 7, 2006

Find some lesbian willing to 'marry' him. How long do people have to stay married before they can stay in the US?
posted by delmoi at 7:45 PM on February 7, 2006

My first thought was that they should get married in Massachusetts, but apparently that's exactly the wrong thing to do.

I hate posting this just to say, "Hey, here's something they can't do!", but it seems like important information and it was surprising to me.
posted by jesourie at 7:52 PM on February 7, 2006

Argh. Serves me right for posting without previewing--my link goes where rob511's goes. Sorry about that.
posted by jesourie at 7:54 PM on February 7, 2006

hmm... maybe one of you could move to canada, gain permanent resident status, and then do the whole marriage thing there?

But then you'd have to live in Canada. And that doesn't really seem part of the game plan.
posted by Kololo at 9:12 PM on February 7, 2006

Ok, this is weird, but it might work.... have the non-US partner go through a 'sex change'. You don't have to be a pretty woman to get married, just be 'female'. Then, after "she's" been here long enough that they're not going to get inspected or anything (do they do that?) -- have "her" sex change back.

Yes, it's strange. But maybe.....

(oh, and for obvious reasons, I'd suggest staying pre-op. :) )
posted by Malor at 9:16 PM on February 7, 2006

adoption is one option, or one person employing the other and getting them a work visa that way, until they're here long enough to apply for a green card.

Malor: ...Can Transexuals Apply for Immigration Benefits?
Yes and no. It depends on the application...
United States Citizenship and Immigration Services (USCIS, formerly the INS) indicated in a memo this past spring, that it will not recognize any marriage or intended marriage in which one or both parties claim to have changed their gender.You might be tempted to ask what happens if the Department of Motor Vehicles and all other pertinent authorities recognize the sexual reassignment? Why bother telling the US CIS at all? Sometimes, the problem lies with the birth certificate, which lists gender at birth. Not to mention the specifics of the law.

Now, almost one-half of all U.S. States allow issuance of a new birth certificate following a sex change. These states also permit those who have undergone sexual reassignment surgery to marry someone who was once the same gender as they were.

CIS will not honor a state or foreign decision on the matter. ...
posted by amberglow at 9:21 PM on February 7, 2006

There are far more respectible first-world countries that will recognize the relationship and allow joint-immigration than those, like the U.S., won't. Most (if not all) E.U. countries allow, I know from experience (my partner is Belgian, I'm American).

This is something that will eventually change in America. Even the Repthuglicans have made noise of making this allowance. Of course, the whole marriage/rights issue may still cause problems.
posted by Goofyy at 11:40 PM on February 7, 2006

If the person is from Bolivia, then maybe they could try political asylum? Didn't they just elect a socialist leader? The US frowns upon that (i.e. Cuba) and could be good grounds because of political freedom. Of course, this needs to be proven. Depending where you are, also sexuality if threatenend (but they wont grant it because he is gay). Maybe there is something else?
posted by _zed_ at 6:36 AM on February 8, 2006

asylum based on sexuality is never accepted by us, i don't think. We ourselves don't recognize sexuality as an Equal Protection or anti-discrimination class in our own federal laws, except when it comes to death by hate crimes, and that's only the FBI.

it really is a better idea to go to Canada together or some other more enlightened country rather than try to legally get him here as part of the family he is in--it's pathetic.
posted by amberglow at 7:55 AM on February 8, 2006

Basically, what the other posters said.

There is currently no way to make their relationship the basis of immigration into the US (like they could if they were heterosexual), so they'd have to look into the other ways in which immigrants can obtain work visas/green cards/citizenship. There is plenty of information about that all over the web, including some good links above, so I'll leave the research to your friend.

It sucks, but there it is. Until there is federal recognition of same-sex marriage/civil unions.
posted by widdershins at 9:19 AM on February 8, 2006

Thanks for the input, everyone!
posted by evariste at 9:58 AM on February 8, 2006

Well he "could" try to prove persecution because he is gay. Surprisingly for the Fundie-ruled US, this isn't as doomed to failure as one would think.

See this link to a BBC story, and this link as well.

SO while USCIS may not acknowledge asylum for being gay, apparently judges have. I do remember, but can't seem to google, a directive of the Clinton administration to explicitly allow gays who are being persecuted to apply for asylum. This may have changed with the current White House occupants, of course.

But I think it may have to do with where you live and what judge ultimately hears the appeal from an inevitable USCIS denial. Plus one would have to have a real fear of gay-bashing crimes, rather than just suffering from social discrimination. I don't know the situation vis-a-vis Bolivia for that. Guess this is where an immigration lawyer comes in.

Or if friend is self-employed or owns a small company, can he perhaps structure a job such that his husband is the only person who can possibly fill it?
posted by xetere at 11:22 AM on February 8, 2006

I agree with xetere, an asylum claim based on his homosexuality and Bolivian attitudes towards it may be the best bet.

The problem with filing on a marriage claim leading to removal is because of a little thing called "dual intent." If he is here as a non-immigrant, he's been admitted to the US on the basis that he claims that he intends to go home. If he then files for permanent residence then he is demonstrating that he does not intend to go home, therefore he is violating the terms of his admission.

Sorry, I can't be more helpful, but that is the unfortunate situation in our country today.
posted by Pollomacho at 9:53 AM on February 14, 2006