COVER STORY: Immigration inequality keeps couple apart

Dallasite and his Canadian partner, like other bi-national couples, have to get creative to live together, thanks to anti-gay U.S. immigration laws

EDITOR’S NOTE: The men profiled in this report asked, on the advice of their attorney, that their full names not be used because their case is pending before immigration officials.

DAVID TAFFET | Staff Writer
taffet@dallasvoice.com

After the 2001 death of his partner, Dallasite Mark J. found a second chance at love. But with the U.S. government standing between them, Mark and his new partner knew their “happily ever after” wouldn’t come easily.

Mark and his first partner met Greg K., a Canadian, online in the 1990s and began a long-distance friendship. After Mark’s partner died suddenly in 2001, Mark and Greg began visiting each other.

By 2005, their friendship developed into a relationship — but one that is not without its difficulties. Mark said he and Greg speak on the phone three times a day, and once every two months they spend 10 days together.

It’s not an ideal arrangement, but they chose to work it out that way because neither was ready to move because of their jobs, and both have family obligations that tie them to their homes. Mark, for example, cares for his deceased partner’s mother, who is in her 90s.

But the situation could change soon. Mark and Greg are both are in their 50s, and both plan to retire in five years. Still, even then, federal immigration law poses a major roadblock.

To explore their options, Mark and Greg visited attorney Stacy Webb, who specializes in immigration cases and estate planning services and was recently qualified as a pro bono attorney for Human Rights Initiative. HRI is a Dallas-based organization that offers service to local refugees and immigrants who have suffered human rights abuses.

Webb told them their options are limited.

Mark can move to Greg’s home in Ontario if the couple marries. But Greg only qualifies for a 90-day U.S. tourist visa and cannot move to Dallas to live with Mark.

The problem is U.S. immigration inequality.

The foreign partner in a married, opposite-sex couple can apply for residency in the U.S. and will automatically be granted a green card, unless there is a specific reason for exclusion. The green card gives the spouse permanent residency and the right to begin the process of applying for citizenship.

But because the federal Defense of Marriage Act specifically prohibits legal recognition of same-sex marriage, couples like Mark and Greg don’t have that option.

“As an attorney, it can be frustrating when same-sex couples come to me for help with their immigration issues,” Webb said.

“Here is a couple that has taken every possible step to formalize their relationship. They’ve prepared mutual wills and powers of attorney, held themselves out to the world as a committed couple, and shared their lives for several years. But because the federal government chooses not to recognize that relationship, there is no way for Greg come to this country legally,” Webb said.

Canada issues visas on a point system. On his own, Mark scored too low to obtain permanent resident status. According to Canada’s Lesbian and Gay Immigration Taskforce — known as LEGIT — age and any health conditions that require long-term health and social service support would count against an immigrant.

But Mark did score points for his education and work experience.

However, under the Canadian marriage equality law, Mark can apply for permanent residency as Greg’s spouse if they marry in Canada or in one of the U.S. states that offer marriage, civil unions or domestic partnerships.

Because they are planning ahead, if Mark decides to move to Canada, he should not encounter any problems, according to Webb. LEGIT says the application process takes anywhere from three months to three years.

Although DOMA prevents the U.S. government from recognizing same-sex marriages, the proposed Uniting American Families Act would allow an American partner to sponsor a spouse. That bill is stalled in Congress.

“One of the stated goals of U.S. immigration policy is to ‘keep families together,’” Webb said. “However, they obviously don’t mean our families because same-sex citizens cannot petition for their partners or spouses.”

UAFA would remedy the injustice that tears same-sex families apart.

According to the New York-based Immigration Equality, 19 countries allow bi-national couples to sponsor their same-sex partners for immigration. Canada is among them. The U.S. is not.

Steve Ralls, spokesman for Immigration Equality, said, “Canada is a very welcoming country for lesbian and gay couples.”

Many of Immigration Equality’s clients move to Canada for a number of reasons. Proximity, Ralls said, is an advantage. But even more important is that same-sex couples receive all the benefits of heterosexual couples once they become Canadian residents.

“Everything from an enormously progressive health care system to tax benefits, including filing tax returns jointly,” Ralls said.

Mark can be listed as a beneficiary of Greg’s Canadian Social Security benefits. Greg cannot receive benefits from Mark’s American Social Security.

Ralls said that a number of bi-national couples have immigrated to Canada, even in cases where neither is Canadian.

One applies to become a Canadian resident based on the point system. Once a resident, that person can sponsor his or her partner for residency.

Ralls said that if UAFA passed in the U.S., bi-national couples would have to undergo the same strict criteria as opposite-sex couples. That includes intrusive interviews that confirm the validity of a relationship.

He said that UAFA was recently reintroduced in the U.S. House of Representatives and Senate with its largest number of cosponsors. But that’s still not enough votes for the measure to pass.

Two Texas representatives — Sheila Jackson Lee of Houston and Eddie Bernice Johnson of Dallas — are among the sponsors.

“The current House makes it difficult to pass,” Ralls said. “But if they tackle immigration reform, it will be GLBT-inclusive.”

He said he thinks that immigration reform legislation will be introduced in Congress before the end of the summer.

Ralls said that if Republicans and Democrats can agree on major issues — such as a path to citizenship — relationship equality will pass as part of the package.

Cannon Flowers is CEO of Human Rights Initiative. He advises bi-national couples planning to live in the U.S. to stay legal and work with an attorney.

“You can make a lot of mistakes before you realize what you’ve done,” he said, adding that any misrepresentation of immigration status — on a credit card application, a loan or other legal document — could be considered fraud and used years later as a permanent bar to immigration.

“Get legal advice before you start the process,” he said.

Flowers, who is himself in a bi-national relationship, said he began doing research before he and his partner entered the U.S.

“There are more options than people realize,” he said.

He mentioned a friend in Houston who has four degrees and noted that educational visas are relatively easy to obtain. Another of Flowers’ friends lives in California on an artist’s visa. Flowers said that those visas are also obtainable if you can prove a certain level of achievement.

Another of Flowers’ friends qualified for a green card because, as a doctor, he provides a level of skill needed in the country.

“Get creative,” Flowers advised those looking for ways to get a visa.

Bi-national couples pay a heavy price for maintaining a relationship. Some couples give up jobs and move away from extended family to be together. Mark and
Greg have made the decision to work another five years until they are ready to retire. But in the meantime, they have to maintain two separate residences and incur high travel expenses to be together.

Flowers counted his partner’s education, an investment in a business they may never have started and attorney’s fees as his biggest expenses.

“His tax filing is more complicated because of his entrepreneurial visa status,” Flowers said. “And he spends thousands more per year in accounting.

Visas to reside in the U.S. must be picked up in the home country. So each time a visa is renewed or changed from one category to another, a trip that may involve travel halfway around the world will be required.

Webb said that as an attorney, he’s sworn to abide by the laws of the United States. But as an advocate for his clients, he believes it’s time to change the laws to honor all families.

“The founders of this country recognized that we all have the right to ‘life, liberty and the pursuit of happiness,’” Webb said. “What can be more basic to the pursuit of happiness than being able to choose with whom you share your life?”