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[This story was published originally on Immigration Here and There in May 2007]

See related article: “Love Exiles” want a choice to live in the US

A slight feeling of dread would creep into Jim Danaher’s heart every time his boyfriend, Christof Spiesschaert, left the country. While Christof, a Belgian citizen, had a valid tourist visa, the document did not guarantee he would be let back into the U.S. once he left its borders. Entering the U.S. is under the jurisdiction of the U.S. Customs and Border Patrol,a separate department from the U.S. Citizenship and Immigration Services which grants visas.

Early last April when Jim found himself waiting for Christof to come striding into the arrival waiting area long after Christof’s plane from Mexico had landed at Chicago O’Hare, Jim knew something was wrong.

The couple had been in a relationship for about a year and a half after meeting in Florida in late 2004 while they were both on vacation. After the two exchanged a few short visits, including a Valentine’s Day weekend in Paris, Jim, 47, and Christof, 37, decided to live together in the U.S.

Although Belgium had laws that allowed Christof to sponsor Jim, the couple decided that would not be in their best interest. Jim had a better paying job and career in the U.S. and it wouldn’t transfer easily to Belgium, plus the cost of living is very high compared to the U.S. They also didn’t want to go on seeing each other every two weeks followed by three or four months off.

Christof and Jim meticulously put Christof’s B-1/B-2 tourist visa application together, being sure to emphasize his family ties back home, the job he kept in Belgium from which he was only taking a year sabbatical and the ample savings he was keeping in Belgium banks. It is imperative to establish these ties to home when applying for a six-month visa so the U.S. Citizenship and Immigration Services office can see that a person is not at risk to stay in this country.

Christof succeeded in getting the visa and came to live with Jim in Chicago. A B-1/B-2 visa is valid for six months and can be extended for six months. After that, Christof had to apply for another B-1/B-2 visa. It had been almost a year before the incident last April, and they had renewed the visa once, which had been another trial of confusion in the visa process. Jim even had two immigration officials tell him to do the exact opposite of the other and had to scramble to send the correct fee amount for the application after the website had stated the wrong amount, he said. The relationship was a never ending process of visa applications and waiting.

Throughout 2005 and 2006, Christof traveled a few times to see his family in Belgium and so far he had been lucky and had not had any troubles getting back into the country…until he tried to come back from Mexico.

It turns out the border patrol detained and questioned Christof in Chicago upon his return from Mexico. Although Christof had all the proper documentation on him, the border agent denied the validity of the visa that had been given to him. A letter from his employer in Belgium had been written in Flemish and despite all of Christof’s protestations to the contrary, Jim said, the officials believed it to be a recommendation letter rather than a letter that confirmed that Christof was still employed with the company.

“At customs and border patrol, he got stopped, and they told him, ‘well we are revoking what immigration said. If you contact immigration to try and change those orders we will make sure you can’t come back into the country for five years,’” Jim said, still clearly disturbed by the experience six months later.

“His visa had been extended. What we didn’t realize–and they don’t tell you this until you have had a bad experience–once you have a visa you really should stay put because every time you cross the border they don’t necessarily have to let you back in the country. They can always reject you at the border for almost any reason.”

Christof was finally let through on the condition that he leave the country in two weeks. Jim said they were lucky. The officials could have made Christof get on the next plane back to Belgium and Jim would not have known, as officials do not have to allow people to make phone calls before they leave the country. The next phone call Jim would have received from Christof would have been from Belgium.

“The fear was, no matter if his visa was valid or not, that every time he left the country he never knew whether he would be able to get back into the country. And that’s a lot of pressure,” Jim said with a sad shake of his head. “It all comes down to the person sitting at that station. If they are having a bad day, and decide they can say ‘go back to Brussels.’ You are at the mercy of those people.”

After the incident, Jim and Christof contacted an immigration attorney, who was able to reconfirm the validity of Christof’s visa with the Immigration Customs and Enforcement bureau. Christof was able to stay for the remainder of his visa, which ended in August 2006. But the incident was enough to rattle Christof , and challenge their relationship.

“For [Christof], after he got stopped at the border, for the first month or so every time he would see a policeman it would really make him nervous. He would say, ‘Why is he looking at me funny?’ If immigration officials have a reason they can come in the middle night, you’re out of here. They put you on a plane and your gone. It’s very totalitarian,” Jim explained. “So living under that kind of pressure certainly doesn’t create good feelings.”

It was a close call for Jim and Christof but not an unusual experience for the approximately 40,000 couples in a same sex, bi-national relationship in the U.S., according to the U.S. Census Bureau. Immigration Equality, a part of Human Rights Watch, and a research and advocacy group for lesbian, gay and transgender individuals, said there are probably more than that, as many couples do not reveal their partner.

While opposite sex, bi-national relationships may experience similar difficulties as same sex couples when initially attempting to get visas for the foreign partner to visit, it is only a temporary situation for them.

The U.S. immigration system’s foundation currently revolves around family–about two-thirds of all immigrant visas are family-based, including spouses or intended spouses. The spouse is granted a green card once marriage to a U.S. citizen has been validated, and therefore may stay in the country as long as he or she would like.

But because the Defense of Marriage Act does not allow same-sex couples to be married and federal law is the only law that matters for immigration, a U.S. citizen cannot sponsor his or her foreign same-sex partner for citizenship.

The word “spouse” excludes a citizen from sponsoring a partner as the U.S. federal government does not acknowledge gay marriage, regardless if it is performed in one of the 19 countries where it is legal, such as Canada, or in U.S. states, such as Massachusetts.

But even before a couple marries, heterosexuals have another way to be together. They can obtain a one-time K-1 “fiancée visa.” It allows a significant other of a U.S. citizen to live here for 90 days, as long as the couple has met at least once in the last two years and intend to “conclude a valid marriage.” This is a legal route for heterosexual couples to live together in the U.S. and find out if their relationship will work together in an every-day situation before they get married. Last year, 30,575 K-1 visas were granted, according to the U.S. State Department.

Adam Francoeur, policy coordinator for Immigration Equality, said the legal routes for bi-national hetrosexual couples enable them to enter and leave the U.S. with less scrutiny and suspicion then their same-sex equivalents. “Where there’s legally available paths for a spouse to bring in a fiancée or a spouse, if they wanted to do that they would just use those legally available pathways.”

Jim echoed Francoeur’s statement in his own experience. “If [the fiancee visa] were available, and we could go through the same process we would,” Jim said. “Then you aren’t having to hide anything. You aren’t having to trick the system, you aren’t worried about getting caught. You know you can come and go and are protected by a legal document or framework. It relieves a huge amount of pressure.”

Jim added, “To say you are a heterosexual couple, you met someone abroad and got engaged and want to marry that person, [U.S. officials] aren’t going to look at you and say that’s weird.”

But that option isn’t available to couples of the same sex.

“It’s hard not to feel persecuted, singled out,” Jim said.

Same sex, bi-national couples face four options when applying for a non-immigrant visa for their foreign partner. Even if the goal is to become a U.S. citizen, the process can take years, so couples must apply for these types of visas if they want to attempt to be together in the U.S. in the meantime.

There is the tourist visa, or B-1/B-2 that Christof was able to obtain. It only lasts up to six months, although the applicant can extend it for another six months, and does not allow the foreigner to work. The applicant must clearly show that he or she has strong ties to home, both monetarily and family wise, and there must be enough money in the applicant’s bank account to show he can support himself for the length of his stay.

If the visa applicant does not have enough money himself, it is possible to have a U.S. citizen sponsor the applicant. But for gay couples this can often backfire, as officials can become suspicious about the sponsor if he does not appear to have any other ties to the applicant. And if an applicant is found to have lied during the application process, he can be restricted from getting a visa for an extended length of time, 10 years or more.

There is the F-1 student visa, which many young same sex, bi-national couples use but the individual must be accepted to study at a U.S. college or university and be in a position to pay for it. Not only are these two visas time-limited they are also very expensive.

If anybody is going to make a commitment to making a same sex, bi-national relationship work, Jim said, “somebody better have some money because you are not going to get through this process without any money.” The cost of applying for the visas, covering legal expenses, supporting the couple’s living expenses and possibly paying for school tuition can add up.

There is the difficult to obtain but most useful visa: the employer-sponsored, non-immigrant visa, or H1B. The individual has to find an employer who is willing to go through the trouble, expense and paperwork to sponsor the foreign partner, which usually means the partner must be highly skilled.

Sometimes employers know that the foreign partner is dependent on them to stay in the U.S. and can very easily exploit the situation. “Family, Unvalued,” a report by Human Rights Watch and Immigration Equality documented several couples that faced this difficult situation.

There is one other option to get a visa and that is to apply to a green card lottery system. Every year people from a list of eligible countries who meet certain requirements of skill levels can submit their name into a lottery process to obtain a U.S. green card. Names are drawn at random and those people are then able to join the green card process although they still must go through a review process before they are able to obtain the green card.

But only 50,000 visas are available and usually over 2 million people apply. The number of people picked from the applicant’s geographical region depends on the number of immigrants who have come to the U.S. in the last five years.

There are also a small number of gay individuals who are granted asylum based on persecution in their home countries. Last year Immigration Equality won 18 cases of asylum for sexual orientation from such countries as Uganda, Turkmenistan, Congo, Algeria, Jamaica, Russia, Egypt, Peru, Bangladesh, Venezuela, Mexico and Colombia but lost two of them.

Being granted asylum for sexual orientation is difficult to achieve. There is a 1996 law that states that applicants only have one year after coming to the U.S. to file for asylum status. Ignorance and fear also play a role. Many immigrant communities still are not tolerant of gay people and many people are not aware that asylum may be granted for persecution based on sexual orientation until it is too late to file. Also getting information to support the claim of persecution can be difficult, as it often involves feelings and undocumented incidents, which do not hold up well when confronted with the skepticism of an asylum officer or immigrant judge.

Making life work on a tourist visa

If the partner is not able to obtain at least a work visa, life can be very difficult for the couples as they try to balance everyday life with the pressure of constantly worrying about visas and staying legal. Even with a work visa, there is always the worry that the foreign partner may get fired and lose it.

“It is a constant thing that is hanging over your head all the time. So for the person who is coming from the other country, you certainly don’t feel very welcome. You feel like the U.S. views you as a second class person,” Jim said.

On a tourist visa, Christof was not allowed to work or go to school. So while Jim, who worked as a financial analyst, went to work most days, Christof was left to occupy himself all day.

“He would try and find a way to interest himself, household chores and things like that. You just sort of run out of things to do. You can only be so creative,” Jim described.

While Jim said this sense of isolation is perhaps not true for all same sex, bi-national couples, it became a problem for him.

“I would get up in the morning, come home, and he’d be there and he would want as much attention as he could get. I had no time to myself. It was a real strain,” Jim said.
Jim finally had to tell Christof that he needed a little time to himself. “It’s not an easy thing to hear and it wasn’t an easy thing to say,” Jim said. It was especially hard for Christof as he already had to deal with the pressures of cultural adjustment.

And beyond that the couple faced many cultural barriers. It often irritated Christof when Jim had to work late. In Europe, Christof had worked as a bank teller and his job was a means to an end, Jim said. Christof needed it but he didn’t enjoy it and he didn’t spend any extra time at it. Like many Americans, Jim not only enjoyed his job but found satisfaction in doing his best work for it, which sometimes meant putting in a few extra hours.

“It’s been kind of a whirlwind overall. I think [Christof] was a little more overwhelmed then he thought. Its one thing to visit those cities but it is very different to live in them. He has found the cultural transition very hard. And it is has been very challenging for me too,” Jim said.

Living in Chicago, Jim said, had been very socially nice for the gay couple. Sometimes, it was even possible for the two of them to put aside the visa aggravations and just be a couple.

But inevitably, a visa would expire and Christof would have to leave the U.S. for at least a couple of weeks to visit Belgium to establish that he was spending enough time there. Christof’s six-month visa had to be renewed and the couple would have to go through the visa process again. And every application was different and a new problem would arise.

“It’s almost as though, it’s the immigration challenges, it’s the cultural challenges trying to assimilate and then it is the relationship… and then of course you have the whole same sex issue,” said Jim, reflecting about the couple’s struggles.

“I really think the biggest thing [the visa issue] creates is that tomorrow it can all be taken away from you. We’re really happy today but tomorrow it might be gone. People may say everyone faces that, but for people dealing with these visa situations, it is very much a reality,” said Jim.

“It builds this layer of pressure. You have this constant unknown.”

Trying to establish an “equal” family-based immigration law

Despite all of these hurdles, there are same sex couples who manage to succeed in obtaining a green card or even citizenship for their partner. But it is not based on the fact that the U.S. government has recognized the couple as a family. They are able to obtain legality for reasons relating to work, luck or persecution.

“No matter how much we love each other, the U.S. government doesn’t care,” Jim said. “But what it comes down to is what do we look like on a piece of paper. What does this look like in black and white.”

Advocacy groups like Immigration Equality, Love Sees No Boundaries based in San Francisco and Love Exiles, a worldwide network based in Holland, are trying to remedy the problem.

In 2005, Rep. Jerrold Nadler, D-N.Y., and Sen. Patrick Leahy, D-Vt., introduced the “Uniting American Families Act.” This legislation would simply replace the word “spouse” with the words “permanent partner.” The necessary requirements–being in a committed relationship, financially interdependent and not in another committed relationship–and penalties for fraud, including fines up to $250,000 and maximum five years imprisonment, would remain the same.

“It just makes sense to include them. It is not about redefining marriage. It is about… family,” said Martha McDevitt-Pugh, the founder and leader of the group Love Exiles, a support and advocacy group for couples who have had to leave their home country to be with a partner.

“It doesn’t affect a lot of people,” she said. She calculates that if the standard estimate of six percent of the U.S. population is gay, about 18 million, then only six percent of that number has a foreign partner, about 1.1 million. “When this legislation passes, there is not going to be a flood of gay people coming to the United States. It is really sad when people are stopped by laws and bureaucracy from being together,” she said.

Because so few are affected immigration equality is not a subject that is widely known even in the gay, lesbian and transgender community, let alone in the general population.

“It’s discouraging it’s not more talked about in the gay community, but support is on the rise. I think people are anxious…[about] this inability,” Francoeur said. “Couples are being forced to make have to make a choice between the country they were raised in and the person they love.”

McDevitt-Pugh also believes that time is changing. “Up till now [same sex couples] have been so immobilized by the fact that we haven’t been able to change the law that we haven’t communicated the simplicity of it. It is about changing two words,” she said.

The measure did not pass in 2005 and it has not been reintroduced this session. But Francoeur is hopeful that the greater discussion of immigration will jumpstart the discussion. “It’s going to be difficult to get the Uniting American Families Act in to a larger [immigration] bill. But the additional attention gives us an opportunity for debate and discussion,” said Francoeur.

“We are fighting for the same rights that have been available to opposite sex partners from the beginning of the American experiment,” Francoeur concluded. “We are just seeking parity under immigration law.”

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