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Guest column by Tanya Domi – An American and a Canadian: Living in a Bi-National Abyss

Frequent guest columnist Tanya Domi, who often writes about military issues here at the Blend, turns her attention to another aspect of discrimination against LGBTs that affects her profoundly — lack of parity in immigration for binational couples.

An American and a Canadian: Living in a Bi-National Abyss

By Tanya Domi

For the past five years my partner Deborah and I have been reconnoitering the U.S immigration laws that keep us precariously together in New York City—the place that became our home through determination and ultimately love of New York that is unique of all cities either of have ever experienced and inhabited.

We fell in love with New York City, separately, at different times in our lives-Deborah through graduate school at Yeshiva University while in her 30s and for me–graduate school too, at Columbia University after I had returned to the States after living abroad for many years.

But last year when Deborah lost her job, our New York bliss almost came to a crashing end. We were both shocked when she lost a job that had given her more security-more than she had ever had before during the 14 years she had lived in New York City. She had finally obtained an H-1b visa, a temporary worker visa that can lead to obtaining a “green card” and permanent resident status, is available to foreign nationals working in the U.S. due to professional skills. In Deborah’s case, because she is a a licensed clinical social worker with a school administrator’s license she was uniquely qualified to manage a school for emotionally disturbed and mentally disabled children where she had worked for 13 years. Uniquely qualifying skills are vital to obtain a H1-B visa and must be stipulated to and legally justified by the employer. Indeed, the employer must pay for the H-1b visa and the person who is applying for the H1-B visa is prohibited by law from paying for the process, which at minimum costs at least $5,000.

U.S. Immigration laws (fact sheets on H1b visas are not available on official U.S. immigration website nor are translations available) are convoluted, strict and quite expensive if you want to stay and live in the United States-even more expensive if you want to become a citizen.

Deborah is Canadian, which many know has some of the best laws in the world that protect LGBT people from discrimination. Indeed, marriage is legal for LGBT people in Canada. In fact, if we were to decide to move to Canada, as Deborah’s domestic partner of at least one year (you are not required to be married and a domestic partnership can be demonstrated by showing proof of shared bank accounts, house ownership or rental agreements etc), I could enter Canada with automatic “land grant status” that would provide me access to the Canadian health care system and a work permit IMMEDIATELY:

November, 2001– TheCanadian Immigration and Refugee Protection Actwas passed. The law now recognizes “common-law partners”, including same-sex couples, as members of the family class, so a same-sex partner of an LGBT Canadian is now eligible to immigrate to Canada. Previously, same-sex partners could only be admitted on a case-by-case basis on humanitarian or compassionate grounds. The definition of “common-law partner” [defined as someone who has been in a conjugal relationship for at least a year] is set out in the new immigration regulations, which took effect June 28, 2002. Several groups had argued that the original “cohabitation” requirement was unworkable for many lesbian or gay couples; the government agreed. Lesbians, gays and bisexuals with a well-founded fear of persecution based on sexual orientation have now been recognized as eligible to immigrate to Canada as refugees.

After Deborah lost her job, the school’s attorney agreed not to notify U.S immigration and customs for a month, otherwise she would have to leave the country immediately. Nonetheless, she had to begin a job searcg that would ultimately agree to sign immigration papers allowing her to apply for a “TN work permit”. TN work permits were made available to qualified Canadians and Mexicans under the NAFTA trade agreement, allowing social workers from Canada to work in the U.S. A “TN work permit” is not a visa and does not allow its holder to seek citizenship in the U.S. A TN holder cannot stay in the U.S. open ended. Deborah’s TN work permit will expire in two years (three years for each permit) and she will have to exit the country obtain the work permit at U.S. customs either in the airport in Toronto, or at a border crossing at Niagara Falls, for example.

Tanya continues below the fold.

Reentering the U.S. to obtain a work permit at the border, is an exercise in high anxiety–even for a white woman, who has a post-graduate education and licenses ad nauseum–and last year she came as close to not being able to reenter the U.S. as never before. The immigration agent refused to issue a TN work permit to her on technical grounds (the letter from her employer was not properly addressed) thus, he gave her only eight days on a business visa to return to the U.S. to obtain a correctly addressed letter and directed to leave the U.S. to represent the paperwork, or else face the likelihood of being unable to visit the U.S. as a tourist for at least a year.

I was so upset that at one point I broke down, crying in front of my colleagues at work.

Some people may question: “Why do you stay? Why don’t you move to Canada?”

Good question. I am zeroing in on retirement planning now and this would not be a good time for me to pull up roots and start over again. Both of us love New York City and we have discussed moving to Canada when I retire. These are big questions that only two people can decide between themselves.

But I also resent that my own country, has done nothing to advance the legal status of foreign national partners of LGBT Americans. Only comprehensive immigration reform that includes recognition of same-sex partners of LGBT Americans will end this twilight zone of living for Deborah and me, and thousands of others like us in the U.S. Immigration Equality, the organization in the U.S. that advocates for equal immigration rights for LGBT and HIV-positive persons, estimates there are 40,000 bi-national couples in the U.S. A report prepared by Human Rights Watch and Immigration Equality entitled “Family, Undervalued: Discrimination, Denial and the Fate of Bi-national Same Sex Couples under U.S. Law” is a worthy read that is certainly well researched about the onerous and discriminatory laws of the U.S.

Immigration Equality has stepped up its work in Congress on the United American Families Act, which has been introduced in both the House and Senate with a healthy 124 sponsors in the House (H.R. 1024), which was introduced by Rep. Jerrold Nadler (D-NY) and in the Senate (S. 424) by Sen. Pat Leahy (D-VT). In April, Immigration Equality announced that the Senate immigration reform “principles” included LGBT citizens and permanent legal residents the ability to sponsor their foreign national partners for residency in the U.S.

But the reality is, without the White House and the Congressional Democratic leadership pushing comprehensive immigration reform, moving a stand-alone bill is not politically realistic. As most Hill watchers know, immigration reform is not likely to happen in this Congress, thus work must begin anew in the 112th Congress scheduled to begin in January 2011. Without Democratic majorities in at least one chamber, hopes to sponsor my partner for residency along with thousands of others, are not just dashed, but will be delayed for many years to come.

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Pam Spaulding

Pam Spaulding