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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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Comments
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I hear ya, Chris. I'm going into exile on Friday, and I've largely given up on the United States. My father said recently how ironic it is that his father came to this country in a boat with one pair of shoes, half his teeth, and no education -- and when he got here, he refused to ever speak of Ireland again. And now, two generations later, I have to emigrate to Brazil, or abandon my husband. Honestly, I never thought my Dad would find himself questioning this country. It's pretty bewildering. But alas, my grandfather never looked back. I won't either.
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Amen, Chris.
Being in the same boat as Chris and Kevin, here are two points I would like to pass on:
1. For those wishing to get immediate recognition of a same sex relationship (i.e. not have to live together for a year to prove a relationship) in order to apply for Canadian immigration, a South African marriage would be ideal. South Africa doesn't require a visa for 98% of the world, making it easy for a US citizen and a non first world boyfriend/girlfriend to legally get to. So with a quick trip to Capetown, you can get married and Canada would recognize it. South Africa could become the Las Vegas for gays.
2. And for Kevin, there are 4 countries that grant citizenship based on ancestry ...... and Ireland is one of them. Get an Irish citizenship and you have E.U. citizenship. With E.U. citizenship you can live anywhere you want in the E.U. and if you choose Belgium, Spain, Netherlands, or England, you can bring your partner along with you as a spouse or a fiance. The other 3 countrie that I know of that grant citizenship based on ancestry are: Italy, Israel and Greece.
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The UK also has a provision for "citizens by descent," but your parents must have been UK citizens by birth. It doesn't matter if they left the UK, as long as they didn't do something like renounce their British citizenship (something almost no one ever does); so if you were born to British-born parents outside of Britain, you're probably British by descent. (The Home Office web site has the details.)
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Another important point is that the UK also permits UK gay citizens to bring in their non-UK partners to that country and they do not necessarily have to be married or in a civil partnership either. It has been in effect for several years, long before civil partnerships were the law. Civil Partnerships provide all the rights and privileges of heterosexual marriage I might add.
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Andoni:
Thanks very much for your post. I didn't mention that I was indeed registered in the Foreign Births Registry of Ireland and have had my Irish/EU passport since 1988. I also read that despite the lack of a civil unions law there, we could still settle there as a couple under the order of the European Court of Justice that Ireland recently set forth regulations to comply with. And apparently, since my partner is non-European we end up having slightly more rights than an Irish gay couple. Something like that. I'm still reading up on it...
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Chris, instead of saying 'Immigration law is an ass', start the article with the headline 'Immigration law sux donkey dick'.
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It has been in effect for several years, long before civil partnerships were the law. Civil Partnerships provide all the rights and privileges of heterosexual marriage I might add.
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Chris, when you write that a non-American granted a work visa in the U.S. can sponsor his/her unmarried partner, I guess you speak of a B-2 visa. This new option is just a limited option, because it does not allow the partner to work in the US.
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Brazil is a long ways away.
Have the two of you looked into getting Mexican Citizenship? You could live just across the border in any number of communities that cater to expats.
AND yes, I no this isn't the solution, but it might improve some aspects of your life
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Great info, guys, thanks! I'm new to this. I'm German and planning to get married to my Canadian partner in Canada. We plan on moving to Spain soon. According to Andoni's comments, there should be no problem but I can't find any literature and would hate to be turned away at the airport. Does anyone know where I can find more info online? Specifically to Spain or to the European Court of Justice's decision, as mentioned above?
Thanks!!!
Niklas
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I overheard a father
The comments to this entry are closed.
KipEsquire on Mar 27, 2007 5:25:35 PM:
Actually Bumble says, "the law is a ass" not "an ass."
http://www.bartleby.com/73/1002.html