Everyday Immigration Equality answers immigration questions from the thousands of lesbian, gay, bisexual, and transgender immigrants and their families. We also provide support for immigration attorneys throughout the United States. Below are some of the most frequently asked questions. Please read through these first, and if you don’t see the answer, then email us.
It looks like it may be easier for my partner and me to be together in Canada than in the United States. Is Canada an option?
It may be. Unlike the American immigration system which generally requires an applicant for permanent status to have a family member or employer sponsor, foreign nationals can apply for “landed immigrant” status in Canada without having such a sponsor. Canada uses a “point system” through which applicants are assigned point values for desired characteristics (such as education, work experience, youth, language ability, ties to Canada, etc.) and if an applicant totals enough points, he or she can immigrate to Canada. For more information on Canadian immigration, see Should We Move?
I am a legal permanent resident and I was convicted of a crime in 1991. I’ve already been back to my country twice without any problems. Someone told me that it’s not safe for me to travel abroad, is this true?
One of the harshest consequences of changes to the Immigration law in 1996 was to apply some of the strictest provisions retroactively. This means that anyone who has any criminal convictions, even long ago, should speak with an experienced immigration attorney before doing anything which would lead to a review of their immigration record. Actions which can trigger review (and possible removal proceedings), include:
- international travel
- any application with Immigration such as applying for naturalization or applying to replace a “green card”
- any contact with the police (arrests, traffic stops)
- any contact with border patrols within 100 miles of the U.S. border.
Any foreign national who has criminal convictions, is strongly advised to consult with a qualified immigration attorney to determine what effect the conviction(s) may have on their immigration status here.
Diversity (DV) Lottery
I am in the U.S. without legal status (undocumented), can I still get a “green card” through the lottery?
The diversity visa lottery is a lottery which allows nationals of certain countries which are considered under-represented in immigration to the U.S. to apply for permanent residence in the U.S. The DV lottery is not an amnesty, however, and foreign nationals who are living in the U.S. without legal status (undocumented) should not apply.
Even if they win, undocumented immigrants will not be able to successfully adjust status to legal permanent resident. If they apply for the “green card” from within the U.S., they put themselves at risk for removal (deportation) for being here unlawfully.
Since the HIV ban ended in 2010, foreign nationals who are HIV-positive can now obtain a “green card” through the lottery; please see the section below on HIV and immigration for more information. Beginning in 2004, Immigration has gone to a computerized lottery system, putting undocumented immigrants at potential risk when they submit applications for the lottery because the applicants are giving their personal information to the U.S. government.
HIV and Immigration
I’m HIV-positive, can I get a “green card”?
On January 4, 2010, after more than two decades of discrimination, the U.S. lifted its HIV ban on travel and immigration. This means that green card applicants will no longer be tested for HIV, waivers will no longer be necessary, and travelers will no longer be asked about their HIV status. For more information see The HIV Ban.
My partner has been ordered removed from the U.S. The last time he came to the U.S., he crossed the border without a visa or inspection, he has told me he will come back again this way, but I’m worried that crossing the border has become more dangerous. Is that true?
The border has become increasingly fortified over the past few years. In addition to extended the Mexico-U.S. wall, the U.S. government has hired more people to patrol the border and is using more sophisticated tools to locate border-crossers. Additionally, the U.S. federal government has vastly expanded criminal prosecutions for illegal re-entry. This is now the most commonly prosecuted federal crime — the federal government is prosecuting more people for re-entering the U.S. after being previously removed than it is for drugs or weapons charges. Thus, if your partner is caught re-entering, he is likely to be sentenced to federal prison before again being removed by immigration officials.
I live in Colombia and applied for a tourist visa to the U.S. which was denied because the Consulate thought I had “immigrant intent.” What does this mean? Can I appeal?
Foreign nationals seeking to come to the U.S. on most non-immigrant (temporary) visas most overcome a presumption of “immigrant intent.” This means that the U.S. government begins with the assumption that your plan is really to live in the U.S. permanently and you have to convince them that your ties to your country are so strong that you would not possibly want to leave your country permanently.
The more reasons you might have for wanting to leave your country or stay in the U.S., the harder it is to get a temporary visa, so, for example, coming from Colombia where there is civil unrest, the U.S. government is probably going to scrutinize your application very hard. You will need to show very strong ties to Colombia, such as owning real estate, having a good job, strong family ties, etc. Likewise any strong ties that you have to the U.S. (such as a permanent partner here) can count against you. Unfortunately, there is no appeal process for the denial of a non-immigrant visa at a consulate. You can re-apply, but if you have already been denied based on immigrant intent, your application will probably be scrutinized even harder the second time.
I-94 Authorized Stay
My tourist visa expires in one month, but says I can be in the U.S. for six months. When do I have to leave?
You are legally authorized to be in the U.S. until the date indicated on your I-94 (provided you do not violate the terms of your visa, for example, by working illegally on a tourist visa). The visa gives you permission to board the plane to the U.S. The I-94 authorizes your length of stay in the U.S. Thus, even if the visa that’s in your passport expired, if you’re still authorized to be here on your I-94, you’re in the U.S. lawfully. The reverse is also true, if the time on your I-94 has expired, it doesn’t matter that you still have a valid visa, you are no longer in the U.S. lawfully. Customs and Border Protection is no longer issuing paper I-94 documents to feign nationals upon entering the country, but this information, including the date one’s authorized stay ends, can be accessed online.
Marriage of Convenience (“Immigration Marriage”)
Can’t I just marry someone and get a “green card”?
We advise you very strongly against doing this. Entering into a fraudulent marriage only for immigration purposes is illegal. If you are caught, the foreign born “spouse” will be placed in removal (deportation) proceedings. Both the foreign national and the American citizen “spouse” face possible criminal penalties including a five year prison sentence and $250,000 fine. Committing fraud may bar the foreign national from other alternatives to legalize his/her status.
But it’s pretty easy to get a “green card” through marriage, right?
Contrary to popular belief, getting a “green card” through marriage is not easy. The couple must prove through documentary evidence that they actually reside together and share financial expenses and obligations. The U.S. citizen or legal permanent resident spouse must sign an affidavit of support on behalf of the foreign national which is actually a contract with the U.S. government allowing it to sue the sponsor if the foreign national receives welfare or other means-tested benefits. Also, if a couple is married for fewer than two years at the time of the application, the foreign national is only eligible to receive “conditional legal permanent residence” after the initial and must apply to remove the condition (which means going through the entire documentary proof and interview process again), two years after receiving the conditional “green card.” Thus the entire process takes approximately five years.
Marriage: Same Sex
My partner is foreign born and we want to marry in a state where same-sex marriage is legal. Will doing so enable me to sponsor him or her for a “green card”?
Yes, most families will now be able to obtain a green card. With the end of DOMA, LGBT families will be treated the same under immigration law as different-sex immigrant families. Immigration law is complicated and there will still be barriers for some couples, but the systemic discrimination that prevented our families from receiving the same respect under the law as others has ended. Green card applications will no longer be denied solely because a couple is lesbian or gay. You can find more information on the relationship-based options now available to gay and lesbian couples on our FAQ.
Is it okay for me to marry my partner if I don’t apply for immigration status for him or her?
It depends on the immigration status of the foreign national. Before getting married, he or she should consult with an immigration attorney. It is important to understand that any time a non-citizen seeks to enter the U.S. on a temporary visa he or she must prove to Immigration that his or her intent is to return permanently to his or her own country.
If a non-citizen marries an American and discloses this fact when asked about marital status by an Immigration official, it may be difficult or impossible to obtain a nonimmigrant visa or gain entrance into the U.S. because the Immigration official may conclude that if the non-citizen is married to an American, it is likely that he or she intends to remain in the U.S. permanently. That said, it could still be possible for the non-citizen spouse to apply for an immigrant visa and permanent resident status based on that marriage.
Marriage: Same Sex, Naturalization
I am a legal permanent resident and want to marry my partner. Will this affect my ability to naturalize?
Marriage to a U.S. citizen shouldn’t impact your ability to naturalize, and in some cases, it may allow you to acquire U.S. citizenship sooner than you would have otherwise been eligible. The general rule is that non-citizens can apply for naturalization after living in the U.S. for five years as a legal permanent resident. However, someone who is married to a U.S. citizen can apply for naturalization after three years, regardless of whether the non-citizen spouse obtained a green card through a marriage-based petition or through a different avenue. If a permanent resident marries their U.S. citizen partner, he or she should be eligible to apply for naturalization three years from the date of that marriage or five years from the date he or she became a permanent resident, whichever is sooner.
Partners, Binational Couples Staying Together
I am a U.S. citizen who is in a relationship with a same sex partner from another country, how can we stay together in the United States?
Immigration law in the U.S. is based largely on the principle of family unity; most people get “green cards” through close family relationships with citizens and residents. With the end of DOMA, LGBT families will be treated the same under immigration law as different-sex immigrant families. However, immigration law is very complicated and you should carefully review our FAQs and speak with a qualified attorney before filing anything. Options for families will vary from case to case, based upon a number of factors, including: whether you and your partner are together or apart; whether you are living together in the United States or abroad; whether you and your partner have married; whether your family can marry; and for families together in the United States whether the non-U.S. citizen partner arrived in the United States after having been inspected by an immigration officer or whether they entered without inspection.
If this is not an option, the other means to remain in the United States permanently are by winning asylum, by winning the diversity visa lottery or through employer sponsorship. Some foreign nationals from countries where they have suffered or may suffer persecution because of their sexual orientation, transgender identity, or HIV-positive status, may be able to obtain asylum in the United States. Please see Asylum Seekers for more information.
The diversity visa lottery allows foreign nationals from countries that are under-represented in U.S. immigration to apply for a “green card” provided they have a high school degree or equivalent work experience. It is not an amnesty, and foreign nationals who are in the U.S. without lawful status generally cannot obtain legal permanent residence even if they win. The DV lottery is literally a lottery, which means the odds of winning are not great, but it is free to submit an entry, so it’s worth trying.
Many people who contact us have been successful in remaining in the U.S. by obtaining a student visa. After graduating, it is possible to pursue optional practical training, which allows the person to get employment authorization for one year to pursue work in a field related to the course of study. Often the foreign national succeeds in having this employer or another employer sponsor him or her for H1B (skilled worker status) which allows him or her to remain in the U.S. for three years and work. This status is renewable for a second three year period (six in total, with a possible seventh if a labor certification is pending.) If the employer is willing to go through a cumbersome application for “labor certification” it is possible for the foreign national to obtain legal permanent residence through the employer.
Uniting American Families Act (UAFA)
Previously Called The Permanent Partners Immigration Act (PPIA)
What is UAFA? How can I stay in the U.S. with my partner?
UAFA is a bill, pending in both chambers of Congress, that would allow U.S. citizens and legal permanent residents to sponsor their long-term same-sex partners for immigration benefits in essentially the same way that opposite-sex spouses can do. For more information on UAFA and LGBT-inclusive immigration reform, see our affiliated organization Immigration Equality Action Fund.
I am in the U.S. without legal status and am working under the table. Should I file taxes? How would I do so? Are there any risks involved?
It is difficult to answer this question with any certainty. Of course, it is not legal to work in the U.S. without being authorized to do so, but, of course, millions of “undocumented” foreign nationals do work here every day. Generally, the Internal Revenue Service (IRS) wants everyone who is working to file their taxes. It is illegal to work and not file taxes (in most circumstances), so it is better to break only one law (by working illegally) then to break two laws (by working illegally and not paying taxes.) Also, if the opportunity ever arises in the future for you to legalize your status, it is a point in your favor that you’ve been paying taxes, whereas failing to pay taxes can sometimes count against you in immigration applications.
Likewise, some recent proposals for immigration reform claim that they will reward those who have been in the U.S., working and paying taxes. That being said, it may not be possible for you to pay taxes at this point. Without work authorization, a foreign national cannot obtain a social security number. While some foreign nationals without legal status have been able to obtain tax payer i.d. numbers from IRS, often applications for a tax payer i.d. number are sent back to the applicant requesting information about lawful immigration status and denied if proof of status is not provided. Furthermore, in this era of increasing enforcement and increasing communication between agency computers, paying taxes with a tax payer i.d. number may raise a red flag about immigration status, and it’s possible that IRS could share this information with Immigration.
The safest answer (though least practical) would be for you to save the amount of money you believe you owe in taxes each year, and set it aside. If an opportunity arises in the future for you to legalize your status, go to a tax expert and file your taxes late. You may have to pay a penalty for filing late, but at least you will have filed.
My partner lives in an economically under-developed country and has applied three times for a tourist visa and keeps getting denied. What can I do to help?
It can be very difficult for foreign nationals to obtain visas to come to the U.S. The foreign national must prove that his intent is not to remain in the U.S. permanently. The worse things are in the foreign national’s country, the more difficult it may be for him to prove that his intent is truly to remain in the U.S. temporarily. The most important element in the application for a tourist visa is proving ties to his home country (owning property, having good employment, close family ties, etc.)
It may be helpful if the foreign national is coming to the U.S. for a very specific, limited reason, such as to participate in a work-related conference. Generally, the foreign national should not let the U.S. government know that he has a long-term relationship with an American citizen as this could likely lead to the visa application being denied since the relationship would show a strong reason to intend to remain in the U.S. permanently. Foreign consulates have a great deal of discretion in deciding applications for visas, and there is no appeal for a denial.
Now that DOMA has been declared unconstitutional, however, gay and lesbian U.S. citizens can file fiancé/e visa applications on behalf of their committed partners. This application requires the couple to demonstrate that they have a “bona fide” relationship. When the visa is granted, the couple is required to marry within 90 days of the foreign partner’s entry into the US. Once married, the couple can file the marriage-based application from within the United States. For families that can travel to another country that has marriage equality, another option would be to marry there and then have the U.S. citizen sponsor the foreign national spouse for a green card through consular processing in his/her home country
Unlawful Presence/Undocumented Immigrants
I came to the U.S. on a tourist visa in 2001 and never left. How can I legalize my status now?
A general rule of immigration law is that foreign nationals who are present in the U.S. unlawfully (without current legal status, or undocumented) cannot change from unlawful status to lawful status from within the U.S. But it is generally not an option to leave the U.S. to apply for immigration status because any foreign national who has been unlawfully in the U.S. for more than one year, and leaves the U.S. is barred from re-entering the U.S. for ten years. Any foreign national who has been unlawfully present for more than six months but fewer than twelve months who leaves the U.S. will be barred from re-entering for three years.
Two exceptions to the general rule about being unable to change from unlawful to lawful status from within the U.S. are for asylum applicants and for foreign nationals who are sponsored by immediate relatives (spouses, and adult children.) Unfortunately, however, U.S. law requires asylum seekers to file within one year of their last entry into the U.S. unless they can show a “changed circumstance” or “extraordinary circumstance” which prevented them from filing within the one year. Unless there is a change in the law, you probably will not be able to legalize your status.
However, for those undocumented individuals who entered the U.S. without inspection (“EWI”), the applicant must return to his or her home country to apply. In the past, this was unworkable for most families, because once the applicant left the country he or she was barred from returning for many years. There is now a waiver available which can minimize the length and uncertainty of that wait.
Visa Waiver Program
I come from England and can enter the U.S. for 90 days at a time without a visa. I’ve come to the U.S. six times in the last two years to be with my American partner, and the last time they almost didn’t let me into the U.S. airport. What’s going on?
The Visa Waiver Program (VWP) waives (excuses) the requirement to obtain a visa for residents of certain (mostly Western European) countries to travel to the U.S. The VWP does not guarantee admission into the U.S. however. Coming into the U.S. as a non-immigrant (temporary) visitor is always a two step process. The VWP waives the requirement for the first step – obtaining a visa which allows you to board a plane to the U.S. – but not the second step, actually being permitted into the U.S. Non-immigrant visitors to the U.S. must prove that they do not intend to remain in the U.S. permanently every time they seek to enter the U.S. Even residents of VWP countries will eventually be denied admission into the U.S. if an Immigration official determines that you are actually using the VWP to live in the U.S.