Can I sponsor my gay lover for a green card?

QUESTION:

I am a gay male U.S. citizen. My lover is a male citizen of Pakistan, here on a student visa. He is smart, and people have said they would hire him if only he had a green card. If we get married, can he get a green card?

ANSWER:

Don't call the wedding caterers just yet. The U.S. Congress, as well as U.S. Citizenship and Immigration Services (or USCIS, formerly called the INS) insist that heterosexual marriages are the only ones that count for immigration purposes.

Never mind that same-sex marriage is now available in Massachusetts, or that the states of California, Connecticut, Maine, New Jersey, and Vermont -- as well as countries such as Belgium, Canada, Croatia, Denmark, France, Finland, Germany, the Netherlands, New Zealand, Norway, Greenland, Iceland, South Africa, Spain, Sweden, and the United Kingdom -- are all (to varying degrees) legally recognizing same-sex partnerships. As the law stands, a U.S. citizen can still request a green card (U.S. permanent residence) only for a spouse who is of the opposite sex.

You are not alone in facing this issue. The usual path traveled by couples in your situation is to see whether the foreign-born partner qualifies for (1) a work-based visa, or (2) political asylum. And the fact that your lover is gay will not disqualify him from getting a visa or green card under either of these routes. (An immigrant can, however, still be denied a visa or green card for being HIV positive.)

With regard to the work visa option, your lover will have the best shot if he has, or is developing, job skills that are in short supply in the United States. If so, he may be able to find an employer who will do more than say, "Gee, if you only had a green card," and actually sponsor him for at least a temporary work visa. In fact, many employers prefer to start with sponsoring someone for a temporary visa (such as an H-1B) and then deal with the longer, more complex green card application later.

With regard to the second option, political asylum, your lover may qualify if he fears persecution in Pakistan on account of his homosexuality, or any other ground connected to his race, religion, political opinion, nationality, or particular social group. The persecution does not have to have come directly from the government. For example, gays and lesbians have won asylum from various countries by showing that the authorities failed to protect them from anti-gay street violence.

A number of gays and lesbians from Pakistan have won asylum, according t o the International Gay and Lesbian Human Rights Commission in San Francisco (which can refer you to experienced attorneys: http://www.iglhrc.org). Watch out for time limits on applying for political asylum, however. The law says that a person must apply within one year of entering the United States. Luckily for your lover, USCIS policy favors people who entered the United States legally, by not counting any of the time they spend here with a valid visa as part of that year. But as soon as a person's permitted stay ends, he or she needs to get the application in quickly.

Other couples have also explored illegal paths toward U.S. immigration, such as having the foreign-born partner enter into a fake marriage with a U.S. citizen of the opposite sex. Although you've probably heard of people who this worked for, realize that if caught, USCIS can hammer both partners with fines and criminal prosecution -- and will deport the foreign-born partner, whose chances of reentering the U.S. anytime soon will then plunge to near nil.

The best thing for you to do now is to link up with individuals and groups interested in the issues surrounding immigration for gay partners, such as Immigration Equality, at http://www.immigrationequality.org, the National Center for Lesbian Rights at http://www.nclrights.org, or Lambda Legal at http://www.lambdalegal.org.

Copyright 2006 Nolo