Can I sponsor my same-sex partner for a green card?

Formalizing your relationship is probably wise, from an immigration standpoint -- but won't get your partner any immediate benefits. Nevertheless, the legal landscape is changing for same-sex couples in which one member is an immigrant, and there's cause to hope that your partner may gain immigration rights in the future.

Historically, the U.S. Congress, as well as U.S. Citizenship and Immigration Services (or USCIS, formerly called the INS) have insisted that heterosexual marriages were the only ones that counted for immigration purposes.

They ignored the fact that six states and the District of Columbia permit same-sex couples to marry, and nine other states offer marriage-equivalent relationships (see "Chart: Same-Sex Relationship Recognition by State"). They also ignored the fact that an increasing number of foreign countries allow same-sex marriage, together with immigration rights.

They had the power to ignore such facts, because immigration law is federal, and the federal Defense of Marriage Act (DOMA) defines marriage as between a man and a woman. Thus DOMA prohibits a U.S. citizen from obtaining a green card (U.S. permanent residence) for a spouse or civil partner of the same sex.

The Justice Department (DOJ) instigated a major policy shift in early 2011, however, when it stopped defending DOMA in court. Now, DOJ actually files briefs arguing against DOMA's constitutionality. The Supreme Court is eventually expected to address this issue.

Given how long the matter will likely take to wind its way through various lower courts, experts estimate that we shouldn't expect a Supreme Court decision before 2013. In the meantime, there's still no concrete way for a U.S. citizen to petition for a same-sex spouse to receive a green card. 

But wait, there's another wrinkle: While everyone waits for the dust to settle, U.S. Immigration and Customs Enforcement (ICE) has offered an interim solution, which may provide some same-sex partners of U.S. citizens at least minimal immigration rights. These were outlined in a June 17, 2011 memo by John Morton.

Morton listed new guidelines for ICE agents to use in enforcing the immigration laws, recommending "prosecutorial discretion" when deciding whom to deport (remove) from the United States. The memo said that special consideration should be made for students and other upstanding immigrants who have strong or longstanding ties to the U.S. and make contributions to the community, especially when their removal from the country would divide a family into pieces. (Immigration authorities always exercise a certain amount of prosecutorial discretion -- they don't have the resources to deport everyone who is in the U.S. without authorization.)

Although the Morton memo did not specifically allude to same-sex couples, subsequent actions and statements by the Department of Homeland Security, ICE, and the White House, as well as various decisions by Immigration Judges, have made clear that a same-sex marriage will be treated as a family tie for purposes of this exercise of discretion.

In literal terms, what does this exercise of prosecutorial discretion mean? Your partner could still be arrested by the immigration authorities -- in fact, he'd have to wait for such an arrest to make use of this new policy. After the arrest, he could request an exercise of prosecutorial discretion from ICE (even before the matter gets to Immigration Court), by showing his upstanding behavior and family tie to you. If the request is granted, he would essentially be put into legal limbo -- not deported, but not granted any permanent status, either.

If the request were not granted, he would be referred to immigration court, where he should be able to renew the request for prosecutorial discretion. (The procedural details are still being worked out.) If granted, the case would be administratively closed -- which means put on a pending, inactive status. 

Although DHS had originally said that everyone whose cases have been administratively closed would be eligible to apply for a work permit (also called an employment authorization document or EAD) from USCIS, they have backtracked on this. As of mid-December 2011, DHS was saying that only people with an independent right to a work permit (such as with a pending adjustment of status application -- which would mean you wouldn't have a problem in the first place) could apply for one. Keep your eyes on the news, because that policy could change too.

Is aiming for an administratively closed case a reason to try and get onesself arrested? No, this would be a highly risky strategy, and could still lead to removal -- especially if there's some later reversal in policy. What's more, as of late 2011, experts were observing that many ICE agents were refusing to implement the new policy, seeing their role as to "arrest and deport." 

You are not alone in facing this issue. Until a more solid marriage-based option is developed for same-sex couples, their usual path is to see whether the foreign-born partner qualifies for (1) a work-based visa or (2) asylum. The mere fact that your partner is gay will not disqualify him from getting a visa or green card under either of these routes (though it once did).

With regard to the work visa option, your partner will have the best shot if he has, or is developing, job skills that are in short supply in the United States. If so, he may be able to find an employer who will do more than say, "Gee, if you only had a green card," and actually sponsor him for at least a temporary work visa. In fact, many employers prefer to start with sponsoring someone for a temporary visa (such as an H-1B) and then deal with the longer, more complex green card application later.

With regard to the second option, political asylum, your partner may qualify if he fears persecution in Pakistan on account of his homosexuality, or any other ground connected to his race, religion, political opinion, nationality, or particular social group. The persecution does not have to have come directly from the government. For example, gays and lesbians have won asylum from various countries by showing that the authorities failed to protect them from anti-gay street violence.

A number of gays and lesbians from Pakistan have won asylum, according to the International Gay and Lesbian Human Rights Commission in San Francisco (which can refer you to experienced attorneys: www.iglhrc.org). Watch out for time limits on applying for asylum, however. The law says that a person must apply within one year of entering the United States. Luckily, current USCIS policy favors people who entered the United States legally by not counting any of the time they spend here with a valid visa as part of that year. But, as soon as a person's permitted stay ends, he or she needs to get the application in quickly.

Other couples have also explored illegal paths toward U.S. immigration, such as having the foreign-born partner enter into a fake marriage with a U.S. citizen of the opposite sex. Although you've probably heard of people who this worked for, realize that, if caught, USCIS can hammer both partners with fines and criminal prosecution -- and will deport the foreign-born partner, whose chances of reentering the United States anytime soon will then plunge to near nil.

The best thing for you to do now is to link up with individuals and groups interested in the issues surrounding immigration for gay partners, such as Immigration Equality at www.immigrationequality.org, the National Center for Lesbian Rights at www.nclrights.org, Gay & Lesbian Advocates & Defenders at www.glad.org, or Lambda Legal at www.lambdalegal.org.

For information on various methods of immigrating, see U.S. Immigration Made Easy, by Ilona Bray (Nolo).