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  • « Lantos-Hyde.....-Helms? | Main | A death in the family »

    July 18, 2008

    A tale of 2 immigration systems

    Posted by: Andoni

    Dutch_flag

    How can a gay HIV positive man deported from the United States in January end up in the Netherlands with the equivalent of their “green card” in less than 6 months? The answer is that the Dutch have a fair, sane, and just immigration system -- and the US does not.

    I would like to tell you the story of my friend, whom I’ll call Pedro – and you will realize why I use the pseudonym as you read on.

    Pedro came to the US legally on an H1B1 visa. It was his intention to work, apply for a permanent residence visa (green card) and eventually become a US citizen.

    During his stay, he discovered that he had contracted HIV. Because of the HIV ban inserted into US law by now deceased Senator Jesse Helms, Pedro was ineligible to make the natural progression from an H1B visa to a green card. (Thank God, this law is on the way to being repealed as reported by Andrew Sullivan, but it was too late for Pedro.)

    Pedro was employed by a law firm and his duties required him to appear in court a lot, interact with lots of officials at the courthouse, including judges. His work product was excellent and he was well loved by all with whom he interacted. When the time on his visa ran out, he would have to leave the country because he knew he would be rejected for a green card because of his HIV status. Although he had been in a relationship, that was not a path for him to stay in the US, because the US does not recognize same sex couples for immigration (or anything for that matter). Pretty much everyone he worked with or had contact with was very upset that he was going to have to leave the US.

    The heads of the law firm (lawyers) hatched a plan to arrange for Pedro to marry a female employee of the firm so he could stay. (Note this is highly illegal and people go to jail for this type of fraud.) The HIV ban allows a waiver for spouses of the heterosexual variety. Pedro’s same sex relationship with a US citizen was worth nothing in the eyes of immigration, but if he married a woman, it would not only grease the path to a green card, but also overcome the HIV barrier as well, because of an HIV waiver for opposite sex spouses.

    Because the wedding was scheduled, the law firm did not make any arrangement for Pedro’s replacement. The interesting thing is that a lot of people, including those at the court house, were aware of the impending marriage and the reason for it, and voiced no fraud concerns. In fact they were supportive. This is a prime example of a double standard between those immigrants you know personally and like --- versus some unknown illegal immigrant working in a meat plant in Kansas.

    In the end and to his credit, Pedro could not go through with the fraudulent marriage. He left the US on time and legally.

    While Pedro was in his home country looking for employment his old law firm kept calling him to try to get him back because they were having a hard time getting along without his specialized talent. I won’t go into the details of who did what or how it happened, but after a few months, Pedro returned the US on a tourist visa in order to work for his old company, and to help find and train a replacement. Again, this is highly illegal.

    During this temporary period of once again working for his old firm, Pedro met and fell in love with Peter, a Dutch citizen. They made plans for Pedro to immigrate to the Netherlands to be together as a same sex couple once Pedro finished training the new employee. Before this was able to happen however, a few weeks before he planned to leave permanently, Pedro was found out and deported (again, details left out to protect a lot of people).

    So how fast can a person who could not get residency in the US either based on his same sex relationship or on his job talents (he was disqualified based on his HIV status) get a green card in Holland? Here’s how fast:

    After deportation to his home country in January, Pedro studied for a Dutch language and culture exam which he took and passed in February. In April he received his entry visa to join his partner in the Netherlands. Once united with Peter in Holland, they formed a civil partnership (the Dutch can choose marriage or partnership – both yield immigration benefits) and in July he received a one year visa. After one year he gets a 5 year visa. However, after only 3 of those 5 years he can choose to become a Dutch citizen.

    This is so amazing compared to how he was treated in the United States. Basically, the Dutch (as well as a lot of the EU) treat same sex couples the same as opposite sex couples.

    I spoke with Pedro the other day to congratulate him on his green card. He wanted everyone to know that in the Netherlands it was illegal for them to ask about his HIV status. The only health question he had to answer was with respect to tuberculosis. And that question was simply a “we are going to test you for TB and if you test positive, you have to consent now that you agree to be treated before you can get your visa.” How sane! How rooted in real medical science!

    I dream of the day that the United States starts granting its gay citizens the same rights that other Western Democracies are granting theirs.

    I’m also sorry Pedro did not experience the day that the US stopped discriminating against HIV positive people for immigration. But I’m comforted that he is happy and with a wonderful partner living in the Netherlands – a country that treats his relationship better than our country treats our gay relationships.

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    Comments

    1. va2tx on Jul 18, 2008 4:20:50 PM:

      Hoe pijnlijk het ook is, dat mijn land (de VS) zo ongelooflijk stom blijft. Van harte gefeliciteerd, Pedro! Alles beste uit Texas.

    1. Andoni on Jul 18, 2008 7:00:27 PM:

      In case you are wondering what va2tx is saying in Dutch in the previous comment, I used Google's translator to come with this:
      "How painful it is, that my country (the U.S.) be so incredibly stupid. Congratulations, Pedro! Everything best from Texas."

    1. North Dallas Thirty on Jul 19, 2008 1:45:30 AM:

      The interesting thing is that a lot of people, including those at the court house, were aware of the impending marriage and the reason for it, and voiced no fraud concerns. In fact they were supportive.

      Then they are not fit to be in the judicial system. Please note their names so that the appropriate authorities in their county can be notified.

      I won’t go into the details of who did what or how it happened, but after a few months, Pedro returned the US on a tourist visa in order to work for his old company, and to help find and train a replacement. Again, this is highly illegal.

      I suggest you do. Those people have committed a crime, and they need to be found and punished.

      As for being respected under law, Andoni, how about starting by respecting the law in the first place?

    1. Andoni on Jul 19, 2008 2:34:34 PM:

      OK, NDT, let's ask a few questions to see how much you respect the law yourself:

      1. Do you take license plate numbers (photos or videos) of everyone driving faster than the speed limit and report them to the proper authorities?
      2. Do you report anyone who boasts about how they exaggerate their deductions on their income taxes to keep their taxes lower?
      3. Do you report people who operate on a cash basis, including waiter friends, who most likely are not reporting all their income? I mean you never know.....maybe the gov should check into it?
      4. When sodomy was illegal, did you report your friends who engaged in it? Or possibly you yourself engaged in illegal sodomy?
      5. If you are old enough to have been living under Jim Crow Laws in the South, if you saw someone breaking these laws would you report them?

      If you wish to answer these questions, I would like to know your answers. However, my point is that sometimes laws just aren't right....even if they are laws passed by the proper government bodies.

      I mean, most of the laws passed against the Jews in Germany were done by the proper government authorities. The laws were legal.....but were they right?

      That is the question. What do you do when you believe that a law is not right, even though the proper government authority has passed that law and a majority of people agree.

    1. John on Jul 20, 2008 9:41:06 PM:

      Why is getting married to stay in the country illegal anyway? There is no law that I know of that says you have to love the person you are marrying and must have sex. People get married for lots of reasons. Companionship, tax benefits, etc. This is just one more benefit. What if you are friends with the person you are marrying to stay in the country with. You could be marrying for companionship as well as a visa. Why would that be wrong?

    1. North Dallas Thirty on Jul 23, 2008 12:19:27 AM:

      OK, NDT, let's ask a few questions to see how much you respect the law yourself

      Unfortunately for your argument, Andoni, I am not a judge, nor a lawyer, nor an employee of the judiciary, as were all of the people that you describe.

      Since lawyers and judges occupy a privileged position relative to the practice of law, they are held to higher standards.

      What you and your fellow Obama supporters are saying is that judges and lawyers and those charged with practicing and protecting the law should be allowed to arbitrarily ignore it at will and do as they see fit, including engaging in criminal behavior.

      Case in point:

      The heads of the law firm (lawyers) hatched a plan to arrange for Pedro to marry a female employee of the firm so he could stay......

      after a few months, Pedro returned the US on a tourist visa in order to work for his old company, and to help find and train a replacement.

      Perhaps you are not familiar with certain references -- or the reporting requirements contained therein.

      Furthermore:

      Pedro was employed by a law firm and his duties required him to appear in court a lot, interact with lots of officials at the courthouse, including judges.......

      The interesting thing is that a lot of people, including those at the court house, were aware of the impending marriage and the reason for it, and voiced no fraud concerns. In fact they were supportive.

      Perhaps the judges and other courthouse workers were not familiar with this reference.


      But let's test the theory. Since you state that judges, lawyers, and courthouse workers should be free to ignore any law that they don't think is "right" without penalty, then state that judges, lawyers, and courthouse workers in California may deny marriage to gay couples, ignore laws prohibiting sexual harassment, and take discriminatory action against gay people as they see fit if they think the laws that prohibit such aren't "right".

      Furthermore, if they are criticized for doing so, they can claim, as you have, that that is akin to the Nazi suppression of free thought and expression.

      Agreed?

    1. Charlie on Jul 23, 2008 12:51:36 PM:

      NDT - you undermine any semblance of a meaningful argument when you can't help yourself but say "...you and your fellow Obama supporters..." I had no idea that Obama supporters held this belief! I'm sure you must have read a poll or will be able to produce literature to back up the claim that "...Obama supporters are saying ... that judges and lawyers and those charged with practicing and protecting the law should be allowed to arbitrarily ignore it at will and do as they see fit, including engaging in criminal behavior."

      So is this a belief held by Obama, or just his supporters? What percentage of his supporters hold this belief? Gosh, I'm just curious. Because I know a bunch of Obama supporters and I had no idea that some large percentage of them believed that lawyers and judges are somehow above the law.

    1. Fiancee Visa Attorney on Jul 24, 2008 2:24:54 PM:

      Great article. I look forward to hearing more about this from you and the other online legal readers.

    1. North Dallas Thirty on Jul 25, 2008 12:59:46 AM:

      Because I know a bunch of Obama supporters and I had no idea that some large percentage of them believed that lawyers and judges are somehow above the law.

      Read them this post and ask them how many of them believe that the judges and lawyers who conspired to a) enter this person into a sham marriage, b) keep him in this country illegally, and c) bring him back to this country illegally were acting in the right.

      We already know that Obama supporters like Gavin Newsom and Kamala Harris support aiding and abetting illegal immigrants who commit crimes, and were in fact doing just that until they were recently caught. Andoni's remarks and attitudes are not at all inconsistent with the Obama campaign and what other Obama supporters are doing.

    1. Rachel Tiven on Jul 25, 2008 5:26:36 PM:

      In response to John's post above, Immigration Equality wants to weigh in on the risks of marrying someone for reasons the US government would see as fraudulent. John raises excellent questions about the nature of marriage, but binational couples should be aware of the following, from Immigration Equality's FAQs ( http://www.immigrationequality.org/template.php?pageid=27 ):

      Entering into a fraudulent marriage only for immigration purposes is illegal. If you are caught, the foreign born spouse will be placed in removal (deportation) proceedings. Both the foreign national and the American citizen spouse face possible criminal penalties including a five year prison sentence and $250,000 fine. Committing fraud may bar the foreign national from other alternatives to legalize his/her status.

      Contrary to popular belief, getting a “green card” through marriage is not easy. The couple must prove through documentary evidence that they actually reside together and share financial expenses and obligations. The U.S. citizen or legal permanent resident spouse must sign an affidavit of support on behalf of the foreign national which is actually a contract with the U.S. government allowing it to sue the sponsor if the foreign national receives welfare or other means-tested benefits. Also, if a couple is married for fewer than two years at the time of the application, the foreign national is only eligible to receive “conditional legal permanent residence” after the initial and must apply to remove the condition (which means going through the entire documentary proof and interview process again), two years after receiving the conditional “green card.” Thus the entire process takes approximately five years.

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