Immigration Laws Discriminate Against Gay and Lesbian Families

By James Allen

Imagine the panic and fright you would feel if you learned that your life partner, that one special person you love, was being thrown out of the country you love.  Sadly, some Americans need very little imagination to envision that horror; they are living it now.  While U.S. immigration law generally grants residency to heterosexual non-residents if they are married to a U.S. citizen, it does not allow the same for gay and lesbian non-residents involved in a permanent partnership with an American citizen.  The current double standard puts many gay and lesbian Americans in an impossible position—sometimes forcing them to leave this country.  The Uniting American Families Act (UAFA) would eliminate the double standard, allowing gay and lesbian couples the same residency benefit that heterosexual couples already receive.

Current Immigration Law Discriminates Against Gay and Lesbian Couples

Current U.S. immigration law allows married heterosexual couples composed of a citizen and a non-resident alien to apply for permanent residency for the non-resident.  Immigration officials grant the residency as long as the couple appears to be in a committed relationship and financially interdependent.  Essentially, as long as the relationship is not a "sham", the non-resident will obtain residency. 

However, gay and lesbian couples cannot avail themselves of the same benefit.  The Washington Post has reported on couples such as David Bress and his partner Gary, who have discovered this injustice firsthand.  David, a Washington, D.C. public school teacher, met Gary in Gary's native Canada in 1992.  The two quickly fell in love, and Gary, a self-employed home remodeler, began visiting David every few months.  Because U.S. immigration law did not permit Gary to apply for residency, he had to request a tourist visa for every visit.  The visa allowed him to remain in the country for just six months at a time so Gary was always careful to leave before his time expired. 

During one visit in 2000, a U.S. Border Patrol agent stopped Gary and David, and believing that Gary was an illegal immigrant, the agent barred him from the United States for five years.  Devastated that he could not be with the one he loved, David started planning to move to Canada.  Unfortunately, he could not move immediately because he was caring for his elderly mother and his terminally ill sister.  For months, David made periodic visits to Gary in Canada while he was still working as a teacher and caring for sick loved ones back in the U.S.  In 2003, after his ailing sister and mother died, David retired early from his job and planned his move to Canada.

Nationwide, the 2000 census indicates that more than 35,000 couples are enduring some of the same hardships that David and Gary have suffered.  Even gay and lesbian couples who have married in Massachusetts or formed civil unions in Vermont are in danger of being split.  Immigration laws apply nationally, and current U.S. immigration law does not recognize same-sex unions.

Although on rare occasions non-resident gay and lesbian partners can obtain residency for other reasons or seek asylum, the process is difficult, and most gays and lesbians are ineligible.  Current U.S. immigration law allows wealthy foreign nationals to apply for permanent residency if they invest $1 million or more in an enterprise in the U.S. that employs at least ten people.  However, since most people do not have $1 million to invest, this option helps only a very few. 

Gay and lesbian people can also seek asylum from their native country.  However, immigration officials grant asylum based on sexual orientation only if the country from which the applicant seeks asylum is hostile toward gays and lesbians.  Gary, a gay man from Canada, could not seek asylum in the U.S. because Canada allows same sex marriages in some provinces and has other laws protecting gays and lesbians.  Even when someone is an appropriate candidate for asylum, ten years or more can pass before that person actually obtains permanent residency.

Current Immigration Law Is Harming Communities

Current U.S. immigration policy offers no practical way for non-resident gay and lesbian partners to obtain permanent residency, so many American citizens are forced to choose between the person they love and the country they love.  For David Bress and many others, the choice is easy; they leave to find a place more hospitable to gay and lesbian couples.  However, citizens and their non-resident partners still endure great upheaval.  First, one or both must leave friends and family behind, a difficult and heart wrenching task.  Like David, many gays and lesbians have family responsibilities in the U.S. that complicate efforts to leave the country.  Second, they often must leave their job behind, frequently setting back their career.

In the process, the United States is exporting some of its talent.  Skilled gay and lesbian workers are leaving the U.S. to be with their life partner.  Washington, D.C. can no longer enjoy David's talents as a school teacher, and other communities across the country are suffering similar losses.

The UAFA Would Correct the Problems Current Law Poses

The Uniting American Families Act (UAFA), pending in Congress, would remedy the problems currently facing gay and lesbian couples and their communities.  The act would put homosexual and heterosexual couples on the same footing, requiring no more and no less of gay and lesbian couples than of heterosexual couples.  It would grant non-resident permanent partners residency, defining permanent partners as those individuals who are (1) at least 18 years old, (2) financially interdependent with their partner, (3) not married or in a permanent partnership with another individual, (4) unable to contract into marriage under the Immigration Act definition, and (5) not a blood relative of their partner.

While some groups hostile to immigration fear that the UAFA would open the floodgates to massive immigration, such fears are unfounded.  It would grant residency only to those foreign nationals involved in a financially interdependent permanent partnership with a U.S. citizen.  Many of these individuals have already been living in the U.S. for years on special work or student visas and have been contributing to American society.  In any event, the administrative checks that ensure that heterosexual couples applying for residency are not involved in a "sham" relationship will do the same for gay and lesbian couples.  The measure is simply not a conduit for unfettered immigration.

We Need the UAFA Today

If the UAFA were law today, David Bress and his partner Gary could return to the United States without fearing that immigration officials would once again separate them.  The 35,000 other couples facing a similar plight could likewise stop worrying.  With more than 50 members of the House and at least 9 senators from both political parties cosponsoring the bill, the UAFA clearly has support in Congress.  The measure would eliminate the disparity in treatment between homosexual and heterosexual couples that current immigration law codifies.  It would preserve the permanent partnerships that gays and lesbians form and would prevent communities from losing valuable members.  More importantly, it would prevent couples like David and Gary from having to make a nearly impossible choice between their country and their heart.