March 27, 2007
Immigration law is an ass
Posted by: Chris
I promised in a post last week to pass along a couple of bizarre twists in my immigration saga. Please read on, even if this issue doesn't affect you personally. I think you'll be surprised the myriad ways, as Dickens put it, the law is an ass — especially toward us.
Canada, of course, is leaps and bounds ahead of the U.S. in realizing full equality for gay men and lesbians, especially since they have full marriage rights — first recognized by courts and then affirmed by politicians actually willing to defend their judiciary and constitution.
Not surprisingly as a result, Canada has become a popular destination for gay Americans forced into exile because our country's immigration laws do not allow us to sponsor non-American partners for residence or citizenship. Canada's immigration law, on the other hand, is fully equal — at least on its face.
Under Canadian law, foreigners can apply for "landed immigrant" status or, if they have a job offer in hand, a temporary work visa. In both cases, a same-sex partner can be included on the visa application, whether or not that partner would qualify on his/her own, so long as the couple is either married or are "common law partners," which means have lived together for one year.
For straight couples, that's pretty straightforward, since almost all countries (including the U.S.) allow their straight citizens to sponsor opposite-sex partners for marriage or even fiancee visas. For gay couples, getting married or living together for a year can be an almost impossible hurdle.
Only five countries currently marry gay couples: Canada, the Netherlands, Belgium, Spain and South Africa. Of those, only Canada and South Africa will marry two non-residents. But since Canada's tourist visa requirements are almost as strict toward developing countries as those of the United States, visiting Canada to marry is out of reach for a huge number of gay people. That leaves South Africa, where non-residents can marry and visa restrictions aren't so severe, as the single, very remotely located country where gays wishing to immigrate to Canada can wed.
"Common law" status can be even more difficult to achieve, unless one of the two partners in the binational relationship happens to live in one of the 19 countries worldwide that recognizes gay relationships for immigration purposes. Otherwise, one or the other would have to qualify in some other way to live for a year in the other's country — or a third country — all so they would then qualify as "common law partners" to move to Canada.
Once married or partnered, the application for landed immigrant in Canada can take on average between 14 and 18 months to be processed, and the associated legal fees and other expenses can run up to $3,000 to $4,000.
Meanwhile, heterosexual American can sponsor their foreign partners for fiancee visas, even if they've never met in person. And to make matters even more unequal, a relatively new State Department regulation gives gay non-Americans more rights those of us who are American citizens. That's right, a non-American granted a work visa in the U.S. can sponsor his/her unmarried partner — same or opposite sex — for a visa to come to the U.S. for the length of employment.
While it is encouraging to see the State Department, especially in this administration, take this progressive step, let's be clear about why it happened. It had little to do with uniting families or fulfilling the promise of equality without regard to sexual orientation. It had a lot to do with U.S. corporations who wanted to bring talented non-Americans, primarily Europeans, to work in the U.S. without forcing them to be separated from their unmarried partners.
So if that's the incentive our government listens to, perhaps it's time for a change of strategy for Immigration Equality and other groups pushing for passage of the Uniting American Families Act. Perhaps it's time to enlist powerful U.S. corporations in the fight for UAFA, so that they do not risk a "brain drain" of talented gay and lesbian Americans forced into exile to be with the one they love.
Take a look at this powerful story from the English-language version of El Pais, the Spanish newspaper, for some examples of how the case might be made. Love Exiles, the fantastic Holland-based group of Americans stranded abroad for this reason, would be a tremendous resource for such a strategy. Whether for economic or human rights motivations, it's time the U.S. government began treating its own citizens at least as well as it treats foreigners seeking to work here.
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