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 there’s no way for my partner and me to stay in the United States together, 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 the I-94 (white card in my passport) I was given at the airport 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 stamped 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.
Marriage of Convenience (“Immigration Marriage”)
Can’t I just marry someone of the opposite sex 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”?
Unfortunately, the marriages taking place in states with marriage equality will not give any immigration rights in the short term. In the United States, immigration law is governed entirely by federal law, and in 1996 the federal government passed a law called the Defense of Marriage Act (DOMA), which defines marriage as only between a man and a woman. Thus marriages between same-sex partners, whether they take place in Iowa, Canada, or other countries that allow for such marriages will not provide any immigration benefits in the U.S.
While the Department of Justice announced in early 2011 that it would not longer defend litigation challenging DOMA in federal court, it is still enforcing DOMA. Thus we are not currently advising couples to file green card applications based on marriages to their gay or lesbian partners. There seems to be momentum to overturn DOMA, but, for now the law remains in effect.
That sounds unfair, can I bring a law suit?
In April 2012, Immigration Equality filed a lawsuit on behalf of five binational couples seeking to have DOMA declared unconstitutional. If we succeed with our lawsuit, all binational couples will benefit. We continue to urge others not to file DOMA suits. We have coordinated this carefully with the other LGBT litigation groups, we have the resources of a big law firm behind us, and we can marshal media resources to use our litigation as an educational tool. At the same time we pursue litigation, we are continuing to lobby for the Uniting American Families Act, LGBT-inclusive Comprehensive Immigration Reform, and the Respect for Marriage Act. We also continue to engage in administrative advocacy to hold green card applications and to get our stories into the media so that everyone understands the real suffering this discriminatory law causes.
The Supreme Court agreed to hear Windsor v. United States and a decision is expected in June 2013. We are hopeful that the Supreme Court could declare DOMA unconstitutional then.
The House Republicans have already contracted to pay outside counsel $1.5 million to defend DOMA. Litigating a federal court case correctly requires tremendous resources; bringing bad cases brings the risk of making bad law which will hurt all of us.
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 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.
There is therefore a danger for foreign nationals in entering into a same sex marriage at this point. If your partner is undocumented and you attempt to file a “green card” application for her based on a marriage in a state with same-sex marriage, the application will be denied and your partner will be placed in removal proceedings. Again, in the long term, the marriage movement is a significant step toward equality for same-sex couples, but we still have to wait for immigration benefits.
With recent momentum building against DOMA and with pressure Immigration Equality and other groups are putting on Immigration to hold cases in abeyance pending the resolution of DOMA, we are advising more people to marry than we have in the past. It is still an individualized question. For more in-depth information on this question see Should We Marry?
Marriage: Same Sex, Naturalization
I am a legal permanent resident and consulted with an immigration attorney and determined that I could marry my partner in Massachusetts without the marriage affecting my immigration status. If I want to apply to naturalize, should I answer “married” or “single” on my application with Immigration?
It is hard to know the right answer to a question on which there is no guidance from Immigration. The best advice is probably to be as honest as you can in the application; being lawfully married to your same-sex partner in Massachusetts should not have any effect on the outcome of your naturalization application, but being untruthful could lead to a denial. We suggest answering “married,” putting an asterisk (*) next to the answer and explaining on a separate sheet of paper that you and your partner are married under Massachusetts law. The marriage may also affect other issues relating to your naturalization application such as how you file your taxes. (You will still have to file federal taxes as two single people but may be able to file state taxes jointly in Massachusetts.) Again, we would recommend full disclosure of your marital status so that no one can ever accuse you of being untruthful.
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?
Unfortunately, current U.S. immigration law does not recognize same-sex relationships. Thus there is nothing you can do to help your partner remain 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. 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.
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 (opposite sex 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.
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.