Stranded Between Love and Country

Barbara Dozetos and her Canadian girlfriend met online four years ago, got together in person shortly thereafter and have been living together for the last two years. But come September, when her partner’s student visa expires, Dozetos, who lives in Vermont, could be forced to choose--give up her lover, leave the U.S. for Canada or continue the relationship long distance.

In similar circumstances, a heterosexual couple would have the option of marriage as a means of gaining legal immigration status for a noncitizen. But for gay and lesbian Americans in binational relationships, that alternative is not available.

“It’s comical that a country that prides itself on being so socially advanced is so far behind the curve when it comes to this law,” said Dozetos, 37, a writer for PlanetOut, a gay and lesbian lifestyle Web site.

Dozetos and her partner are among an estimated 100,000 same-sex binational couples in the U.S, according to Immigration Equality, the L.A. offshoot of the Lesbian and Gay Immigration Rights Task Force. There are potentially tens of thousands more, as many gay Americans’ foreign partners are living here illegally and are unwilling to identify themselves for fear of deportation, according to the task force.

*

Some activists believe the problem is likely to grow as technology is progressing and breaking down geographical barriers, making it easier and less expensive to communicate internationally. Increased international travel, including the number of citizens from other countries who visit the U.S., increases the odds that binational couples will be formed. In recent years 14 other countries, including Britain, Australia, France and Canada, have passed laws allowing the same-sex, foreign partners of their citizens to immigrate.

U.S. immigration policy, the activists say, just isn’t keeping pace.

The INS says it is simply applying the law as written--which does not recognize domestic partnerships whether same-sex or heterosexual.

“A domestic partnership between a man and a woman, the INS wouldn’t recognize that either. Obviously, they’re in a better position because if they wanted to get married they could,” said INS spokeswoman Eyleen Schmidt. “The INS’ hands are tied until such time as [same-sex marriage] is recognized as a legal, viable marriage.”

The case of a 26-year-old American and his Japanese partner, who asked that their names not be used for this story, illustrates the dilemma that many gay couples face. The Japanese teacher of English as a second language entered the country with a student visa 3 1/2 years ago. His visa expired two years ago, about the same time he met his partner at a West Hollywood nightclub. The two have been living together for the last year and a half. Because he overstayed his visa and is now “out of status” with the INS, he cannot work. Nor can he drive--his license has expired.

“He feels like he’s in a prison,” said his American partner, who supports the two of them on his salary as a public policy worker. Like many faced with the decision between coming clean on immigration status and facing deportation or remaining in the U.S. illegally with loved ones, he has chosen the latter.

“It’s this great interaction of double closets--the closet of homosexuality and the closet of immigration status,” said Ron Buckmire, co-chair of Immigration Equality, the L.A. chapter of the Lesbian and Gay Immigration Rights Task Force, an advocacy and support organization.

*

The problem has intensified since 1996, when the Immigration Reform Act increased the penalties for foreigners who overstay their visas. Anyone who stays 180 days or more beyond what they are allowed can be deported and barred from returning to the U.S. for three years. Those who stay 365 days or longer can be barred for 10 years.

The INS occasionally grants asylum to those who have established that they would be persecuted on the basis of their sexual orientation if sent back to their native countries, but few successfully make that case. The most common means of immigration to the U.S. are sponsorship through an employer and sponsorship through a family member, such as a parent or spouse. The greatest percentage of the 675,000 immigrations that are granted each year occur through marriage, according to an INS spokeswoman.

To gain residency, some gay and lesbians marry fraudulently--meaning they arrange to marry an American of the opposite sex with whom they have no romantic involvement. But entering into such a marriage is a high-stakes game. The penalty for the foreigner, if caught, is deportation and a permanent barring from ever reentering the country.

Last month, Rep. Jerrold Nadler, (D-New York), introduced for the second year a bill that would grant gay and lesbian binational couples the same rights as married heterosexuals. It would add the words “or permanent partner” anywhere it says “spouse” in the federal immigration code.

The legislation, known as the Permanent Partners Act, intentionally steers clear of promoting gay marriage, recognizing that will be a subject of prolonged legal debate and one that isn’t necessary to solve the same-sex immigration problem.

It is co-sponsored by 49 members of the House (including Los Angeles Democrats Henry Waxman and Xavier Becerra). It needs 218 votes to pass--and even its backers acknowledge it is unlikely to get that level of support. Nadler reintroduced the bill, in part, to increase public awareness on the issue, said Eric Schmeltzer, Nadler’s press secretary.

“Out of the education process we hope there will be enough public pressure on Congress to pass something like this in the future. By and large, the American people are very fair,” Schmeltzer said. “I think the majority of Americans would say it’s a gratuitous cruelty to split apart loving and committed couples as the immigration code does now.”

That means it is unlikely there will be any legal change in INS law in time to help a 38-year-old immigration attorney from West Hollywood and his 33-year-old Australian boyfriend. The couple--who asked that their names not be printed in this article--met two years ago when the Australian, a costume designer, was visiting the U.S.

The two dated for three months, then maintained their friendship by phone and e-mail for the following two years until the Australian earned enough money to return to the U.S. on a tourist visa, which means he can visit but not work here. The two now live together, but that could end in the fall. It all depends on whether the costume designer is successful in petitioning the INS for an “O” visa, granted to artists of exceptional talent.

“At this point I think it’s a 50-50 chance,” said his attorney and boyfriend. If the petition is denied, he said, “we’ll have to make a decision as to whether I’m going to go to Australia and abandon everything. I won’t be able to practice law over there. My whole family’s here. I’ve never been to Australia. It’s insane.”

As recently as 1990 the INS barred gays and lesbians from even entering the U.S. Until then, they were classified as having a psychological disorder and denied immigration.

Today, laws in many states permit gays to adopt children and many employers extend health benefits to domestic partners. But same-sex marriages that would solve the current immigration problem are not recognized.

Last spring, when Vermont legalized civil unions, granting same-sex partners the same rights and responsibilities as heterosexual married couples, many in the gay and lesbian community thought the immigration problem was solved. But a civil union is not the same as marriage. Even if it were, it would have no effect on immigration law.

Marriage is regulated by individual states. Immigration is regulated by the federal government, and in 1996, Congress passed the Defense of Marriage Act, which officially defined marriage for federal purposes, including immigration, as a union between a man and a woman.

Even in Vermont, where Dozetos and her partner live, things are no simpler. “It’s particularly interesting with us living in Vermont, everybody thinks civil unions solved all the problems, and that’s not the case at all,” said Dozetos. “If we got [one] tomorrow, it still wouldn’t take care of the immigration problem. As a matter of fact, it would aggravate it.”

The student visa Dozetos’ girlfriend is using to live in the U.S. is temporary. Forming a civil union might indicate their desire to circumvent the law and reduce her girlfriend’s chances of securing a work-related visa that could allow her to stay in the U.S. permanently.

It is just one more of the many legal dilemmas faced by binational gay and lesbian couples who want to make their home in the United States.