We are regularly contacted by same-sex couples who are binational, that is, partners who are not citizens in each other’s country. They most often are desperate because they have run out of options for living and working in the same country. Current United States immigration law rips these families apart.
March 28, 2011 News Note:
It has been reported that the heads of two of the 26 national offices of the U.S. Citizenship and Immigration Services (USCIS) announced that they had temporarily stopped deportations of would-be immigrants who are validly married to their same-sex U.S. citizen spouses. Also, one other office announced that it would begin accepting family sponsorship applications from couples in same-sex marriages.
These changes are likely due to the growing consensus that the courts will find the “Defense of Marriage Act” to be unconstitutional.
Until these USCIS changes, there was no process that allowed a same-sex partner to sponsor a partner for immigration to the U.S.
Most countries grant immigrant status to foreign nationals who are either legally married to their citizens, or are permanent residents.
While a small, and growing number of American states offer legal marriage for same-sex couples, the federal system strictly forbids recognizing the marriages of same-sex couples. Because of this exclusion, a same-sex partner may not sponsor her or his spouse for immigration.
In September 1996, the United States Congress passed the so-called “Defense of Marriage Act,” which states that only opposite-sex married couples would be recognized by the Federal system.
This law precludes a non-citizen partner in a binational couple who has been able to obtains a same-sex legal marriage in the U.S. or abroad, from being able to immigrate. The federal system — of which the Immigration & Naturalization Service is a part — will not recognize any same-sex marriage. Legal challenges to the “DoMA” law could take 10-20 years.
We recommend gay foreigners with nonimmigrant visas against getting any sort of domestic partner registration, Civil Union, or other public marriage, because that could signal to immigration officials that they intend to stay, which is potential grounds for deportation.
Because the U.S. has proven often hostile to those wishing to immigrate — and to same-sex couples in particular — binational couples may better consider the following list of countries which allow immigration for same-sex couples. Indeed, it may be the only way a binational couple may keep their family intact.
Belgium - also offers legal marriage
Brazil - also offers legal marriage
Canada - also offers legal marriage
Denmark - also offers legal marriage
Finland - also offers legal marriage
France - also offers legal marriage
Iceland - also offers legal marriage
Netherlands - also offers legal marriage
New Zealand - also offers legal marriage
Norway - also offers legal marriage
Portugal - also offers legal marriage
South Africa - also offers legal marriage
Spain - also offers legal marriage
Sweden - also offers legal marriage
United Kingdom - also offers legal marriage
On January 30, 2003, Belgium became the second country in the world to offer legal marriage to same-sex couples. Originally, it was offered only if they are both Belgium citizens, or come from a country that allows legal marriage. An October 1, 2004 law change made it possible for any foreign same-sex couple to marry in Belgium if at least one of the spouses has lived there for three months.
Please see our article: Belgium Offers Legal Marriage
Brazil’s immigration policy organ, the National Council on Immigration, decided on December 12, 2003, to recognize same-sex unions entered into abroad, as a means of granting immigration status to foreign partners from countries, states or cities that offer recognition to same-sex couples. The guidelines are immediately effect.
The policy enables binational couples who are able to obtain contracts, such as marriage, civil unions or domestic partnerships, to use them as proof of a relationship. It also recognizes city and county registries, such as those offered by San Francisco and Buenos Aires, Argentina. Couples are then able to use the procedures associated with sponsoring a spouse for immigration.
Argentina now has legal marriage - see Argentina Offers Legal Marriage.
Canada also stands out in that it is the one country that allows same-sex couples to immigrate where neither party is a Canadian citizen or permanent resident (“landed immigrant”). The first non-Canadian must qualify to enter Canada on its “point system” and then can sponsor her or his partner based on Canada’s “Humanitarian and Compassionate” grounds.
In all other countries, one of the partners needs to already be a citizen of that country before their partner may start the immigration process.
Canada offered legal marriage on June 28, 2005. If one partner is Canadian, or a permanent resident, the married partner would be allowed to apply the marriage toward immigration status.
See: Canada Offers Legal Marriage
- Domestic Partnerships
“Registered Partner” status available for citizens of Denmark, Greenland, Iceland, The Netherlands, Norway, and Sweden can be used for immigration if one partner is already a citizen in one of those countries. It cannot be used by a couple to immigrate elsewhere, because the registration is not equivalent to legal marriage and therefore not recognized by other countries. These registrations are, in fact, a second-class status.
Please see: Marrying Apartheid: The Failure of Domestic Partnership Status.
For immigration, one must prove they have an independent means of support for one year on a tourist visa before applying for a “carte de sejour.” Obtaining a PACS relationship contract does not help regarding immigration status.
Please see: France: Civil Solidarity Pact
- The Netherlands
On April 1, 2001, The Netherlands became the first country in the world to offer full, legal marriage to same-sex couples. However, it is only offered to citizens and legal residents of the Netherlands. Because it is possible for a non-citizen to become a legal resident, immigration is also possible for a foreign partner.
Please see: Netherlands Offers Legal Marriage
- New Zealand
New Zealand has a “Family Category” which allows for “a genuine and stable marriage or de facto relationship (whether heterosexual or same-sex) with a New Zealand citizen or resident who sponsors their application.” As of September 29, 2003, there is a time qualification of one year residency. The couple previously needed to be in this “de facto” status for at least two years, and, prior to 1999, for at least four years.
The new rules also shift the onus of proof on to couples instead of immigration officials having to accept the relationship was genuine. Anyone entering into a partnership solely to gain residence can be imprisoned for up to seven years or a fine of up to $100,000. In 2002, more than 1000 people applied for residency based on a de facto relationship, more than 6000 people made applications based on their marriage.
New Zealand also has new rules that recognize culturally arranged or fixed marriages. Anyone now entering New Zealand for an arranged marriage can apply for a visitors permit, after which they need to marry within three months. Once married, they can apply for a 12-month work permit as the partner of a New Zealander. They must provide evidence they are following a cultural tradition.
- South Africa
South Africa’s highest court, the Constitutional Court, ruled on December 2, 1999, that a foreign partner in a same-sex relationship with a citizen must be afforded the same immigration rights as a married couple. The Court amended the word “spouse” in the Alien Control Act to read “spouse or partner in a permanent same-sex life partnership.” In the ruling the Court said that the Alien Control Act had discriminated against same-sex couples and that “this limitation is not reasonable or justifiable in an open and democratic society based on human dignity, equality and freedom.” It also said that “Such unfair discrimination limits the equality right of [gay men and lesbians] and their right to dignity.”
On June 29, 2005, Spain became the fourth nation in the world to offer legal marriage to same-sex couples.
Please see: Spain Offers Legal Marriage
- United Kingdom
After a long campaign by Stonewall and Stonewall Immigration group, new concessions for unmarried couples allowed recognition of same-sex partners as eligible for British residency based on being in a four-year relationship “akin to marriage.” This was announced in October 1997, and, by 1999, this was reduced to a two-year relationship. In 2000, the unmarried partners concession became an Immigration Rule.
However, the two-year, “akin marriage,” cohabitation regulation is hard to meet, because many couples find it difficult to legally cohabit, particularly where one of the partners is from a non-EU country, and has limited options to stay on a student or work visa.
Fortunately, other British immigration regulations define the phrases “member of family” and “family visitor” as including unmarried same-sex partners. If a person is refused a visa for the purpose of visiting a family member, they have a right to appeal.
“Civil Partnerships” were instituted in Great Britain on November 19, 2004, and came into effect on December 5, 2005. It is only available to same-sex couples. This legal status allows recognition for immigration and nationality purposes. This is now the best option in Britain to allow same-sex binational couples to keep their family intact.
See our article: Civil Partnerships: The Great Britain Approach
It is important to note that most of these immigration-friendly countries require applicant couples to show proof of their relationship, including evidence they have lived together for anything from one-to-four years. This requirement is often difficult, or impossible, to meet, given that partners often cannot legally stay in each other’s country for extended periods of time.
Three countries that are exemptions to the living together requirement are Canada, The Netherlands and South Africa.
The following countries have granted political asylum to lesbians and gay men, as members of a “distinct social class,” based on experienced or likely persecution as homosexual in their home countries. This route to immigration is often very difficult to obtain, with a heavy burden to prove that the persecution exists, but should be considered when all other avenues are closed.
Because all countries have different systems for immigration, and their laws periodically change, it is advisable to contact a country’s gay/lesbian immigration group for the latest information and recommendations.
[Please see: Immigration Resources.]