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Bi-national gay couples face separations under U.S. immigration laws

Time is running out for Dan Pacek, an American citizen, and his partner John, a British national.   The two men live together in a New Jersey home they jointly own and have been in a committed relationship for 10 years.

However, in a matter of months, John, who withheld his last name for fear of being identified by immigration authorities, will be required to leave the country when his employment visa expires and uprooted from the life he and Dan have built.  John’s only option for return will be as a tourist with a maximum stay of three months.

The men are distraught as they scramble to find a solution.

On Monday, April 19, along with other binational couples, John and Dan attended “Always the Bridesmaid Never the Bride,”  an immigration forum at the Lesbian, Gay, Bisexual and Transgendered Community Center.  

Sponsored by an immigrants’ rights coalition, Immigration Equality (formerly the Lesbian and Gay Immigration Rights Task Force), the event addressed that aspect of the same-sex marriage debate which some say is underrepor­ted—the right of non-citizens to attain legal U.S. residence to live with their American partners.

With Massachusetts ready to issue same-sex marriage licenses on May 17, binational couples across the country are wondering whether the ruling can be used to resolve their immigration issues and preclude separations from their partners.

Attendees at Monday night’s meeting did not receive good news.

“Despite the tremendous gains made by lesbians and gay men in Massachuse­tts,” said Victoria Neilson, Immigration Equality’s legal director, “foreign nationals should not marry without consulting an experienced immigration attorney or Immigration Equality. Under federal law, these locally recognized marriages will not provide immigration benefits and applications based on these marriages could lead to deportation or future denials of visa applicatio­ns.”

Neilson’s remarks seemed to rule out a Massachusetts marriage option for binational same-sex couples with one partner who is not a citizen. In fact, according to Neilson, such a marriage might be considered proof of “reasonable intent” to overstay a work or tourist visa, and unwittingly undermine future visas or work permits.

For partners like John and Dan, that cautionary note divests them of the hope they had initially placed in the Massachusetts same-sex marriage victory.

“We’re delighted that all of this is happening in Massachuse­tts,” said Dan,  “but for us it’s tinged with a bit of disappoint­ment.”

 “Before we came tonight, we were thinking strongly that we might go to Massachusetts and get married,” John said, adding that the couple formerly lived in Cambridge, Massachusetts for six years.  “Now, we think it might be too dangerous for us to do because it could jeopardize some future situation.”

U.S. immigration laws are based on the concept of “family unification.”  An estimated 65 percent of all “green cards,” or resident alien identification certificates, are issued to family members of U.S. citizens or permanent residents. As the federal government does not consider same-sex partners family members, gays and lesbians do not qualify to exercise the right of sponsorship of a partner. 

To address this inequity, Rep. Jerrold Nadler (D-N.Y.) has introduced in the House of Representatives the Permanent Partners Immigration Act (PPIA), a bill that allows citizens and permanent residents to sponsor their same-sex partners for legal residence in the U.S. The PPIA currently has 120 House co-sponsors and was introduced in the Senate last year. 

“This is a good time to contact your representative and senator and ask them to co-sponsor the PPIA,” said Neilson.

 “I have no demands of this country, but my partner does because he is a United States citizen,” said Roland C., a German national living in New York with Sam C., his American partner of 19 years.  The couple was not at the forum on April 19, but attended other town meetings at the Center at which marriage equality was discussed. 

The men are concerned that so little light has been shed on the immigration issue.  Their 2001 union was legalized in Germany shortly after passage of same-sex union legislation, allowing Roland to sponsor Sam for German citizenship.  The men say they want the same right in the United States.

Currently 15 countries recognize same-sex couples for the purposes of immigration. They are Australia, Belgium, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, Norway, South Africa, Sweden, New Zealand, and the United Kingdom.

When he enters the U.S. on a tourist visa, Roland says he is forced to deny his relationship in order not to arouse suspicion from U.S. customs and immigration officers.  

 “If I say I am with a U.S. citizen, they’ll arrest me on the spot,” he said.  “If you don’t show any links to a U.S. citizen, you’re actually better off.”

Roland, like several foreign nationals who are unable to acquire long-term immigration benefits while in committed relationships with U.S. citizens, stays on in this country illegally, risking deportation.

 “It’s like sitting on a volcano,” he said. ”One day it’s going to erupt.” 

At Monday’s forum, Nielson said that many of the standard operating practices of U.S. Citizenship and Immigration Services (USCIS), the federal bureau responsible for providing immigration-related services and authorization, are so outwardly lopsided that they would be deemed discriminatory or unlawful if exercised by other federal agencies.

The wait for green card sponsorship, for example, can take several years longer for nationals of Third World countries than for residents of Western nations, Neilson said. 

“Our situation is on a milder level because we both come from Western countries,” said Lydia Stryk, a playwright and former college professor who has spent the last 13 years living between the U.S. and Germany to be with her German partner Halina Bendkowski.  Like Sam C., Stryk acquired immigration benefits in Germany after wedding Bendkowski, an activist and politician who was highly active in Germany’s same-sex marriage struggle. 

While marriage equality activists list such priorities as Social Security benefits and joint income tax returns as important, Dan and John agonize over the real possibility that they will be physically separated from each other.

“Sometimes we feel frustrated that we can’t get that message across,” said Dan. “Even some intimate friends don’t get it.”

 Immigration Equality says it will be hosting several more meetings in coming months. 

“After May 17, I hope this thing snowballs. I hope same-sex marriages get recognized across many more states, and I hope there is a real challenge to DOMA [the Defense of Marriage Act],” said John.  “I just don’t think it will be quick enough for us.”

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Updated 5:17 pm, July 20, 2018
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