OK, up front let me say that I understand you’re not a lawyer, or if you are a lawyer you’re not my lawyer or licensed in my jurisdiction and you’re not offering legal advice and only idiots ask for legal advice on public message boards.
That ought to cover the disclaimers.
Now then, let’s ask a hypothetical question: Let’s say there’s a guy in Wisconsin who’s fallen in love with a guy from Argentina who amazingly enough has fallen in love with him. The Argentine, we’ll call him “Oscar,” is in the United States illegally. He was here on a visa which has expired. Trying to read through immigration law is for me like trying to read Aramaic, so let’s hear some suggestions on how Oscar could stay in the United States legally. He says that he’s been told by an immigration lawyer that the only way to stay legally would be to marry a female citizen, a solution which is unappealing on a number of fronts (not least of which is that marrying to defraud the INS is wicked illegal). Tell me he’s wrong?
For starters, what does Oscar do for a living? And does he have any other close relatives in the U.S.? Is enrolling in further study an option? Tell me how far you’re willing to go with this, and I’ll tell you what your options are.
Eva Luna, Immigration Paralegal
P.S. Also, how long has he been here on the expired visa?
In Argentina, Oscar was studying veterinary medicine. In the US he is part of the underground economy, working whatever he can find where they’ll pay him in cash and not require a valid SSN. His parents and siblings are also in the US, illegally. He has a teenage daughter in Argentina, if that’s at all relevant.
He is taking classes for a GED now since he doesn’t have an American diploma of any kind. I’m sure he would take classes if it would allow him to stay legally.
I’m not sure how long he’s been here on the expired visa exactly. I think about a year.
How far would I go? I’d marry him if it would do any good.
wink congratulations on meeting someone great ! wink
My qualifications are that a good friend of mine is a refugee lawyer in Canada. Hope that meets your requirements … !
Although we’d be thrilled to have you, it is not as easy as some may think to immigrate to Canada, unless you have family here you have to qualify as an ‘independent.’ For this you need an enormous number of qualifications (such as French language, certain occupational skills, lots of money, etc.) The test is here. Note that most Canadians would not qualify to immigrate to Canada under these rules !
The option I would look into (if Canada is what you want to do) is for him to seek refugee status based on his sexual orientation: people do make these claims, successfully, but it depends on the country they’re coming from - he’d basically have to show that his life would be in danger if he went back.
He’d make the refugee claim, then his hypothetical lover would come and join him in the love-fest that is Canada.
Ooh ! Ooh ! Oscar isn’t Jewish, is he? If so, there’s a program in Manitoba that has brought Argentinian Jews up to replenish the fading Jewish population.
In any case, these are just random thoughts from a friend of a refugee lawyer. If you want me to ask her for clarification on any of these, drop me an e-mail.
Well, your 3 basic categories of U.S. immigration are:
Family-based, which sounds like it’s out, as your hypothetical friend has no U.S. citizen or permanent resident close relatives.
Employment-based, which sounds like it’s also out for your friend’s purposes, as the overwhelming majority of employment-based visas which would give him any sort of long-term or permanent legal immigration status require the person to a) have at least a bachelor’s degree or the U.S. equivalent, and b) have a job offer from a U.S. employer that requires the type of education/experience that he has, and c) for permanent immigration purposes, be able to show that there are no qualified and available U.S. workers for that position (among other things; I’m vastly oversimplifying here). More detail on request.
Asylum: good point, cowgirl. In theory one can apply for asylum in the U.S. based on persecution because of one’s sexual orientation; it would probably fall under the “particular social group” criterion for being granted asylum (the others being race, religion, nationality/ethnicity, and political opinion). I’ll poke around and see if I find any case law, but it might be a rather uphill battle, and I’d really recommend talking to an attorney who handles that specific type of claim, because these are very messy.
Oops; I forgot the student thing. You can’t get a student visa to study at a U.S. public secondary school anymore, which doesn’t sound like it would make sense in this situation anyway. You can get one if you’re admitted to an accredited postsecondary program of some kind; you’d have to talk about that with the particular school you had in mind. But a change of status ain’t gonna happen for someone who’s been out of status for that long, and depending on how long he’s been out of status, he may be barred from returning for either 3 or 10 years.
Plus then applying for a student visa in Argentina is a complete crapshoot in any case if they figure out he’s already overstayed a visa for a significant period; they could easily deny him. What a mess.
I got a 74 on the Canadian test. Matt, Laurange, Ginger, Cowgirl, (and all the rest), here I come/Attention, je viens!
Seriously, though: Until the laws regarding gay marriage change, isn’t the Wisconsinite’s relationship with Oskar immaterial? Oskar might be able to immigrate or become legal on the merits of his own case, but I don’t see where it has anything to do with his relationship.
I got a 67 on the entrance test. I think I’d have gotten more points except, ironically, my “partner/common-law spouse” caused me to score a 0 in “adaptability.”
I had thought of the asylum route. There is precedent for gay people being offered asylum in the US but in Bush’s America I don’t hold out high hopes.
Precisely. That’s why I didn’t mention the possibility, and why I asked about other close relatives who might have U.S. citizenship or permanent residence.
Also, keep a close eye on Bush’s current proposal to create some sort of work visa category for unskilled (i.e. non-bachelor’s degree) workers. He’s been very short on details so far, though, as to how it would work, so my gut feeling is that it’s an empty election-year attempt to court the Hispanic vote (and some business interests) without pissing off unemployed and underemployed U.S. workers too much.
(you might want to Google it also, for more context.)
It’s not entirely on point (Cuba rather than Argentina), but most asylum decisions are kept confidential for somewhat obvious reasons. So if it doesn’t come up on appeal or at the Federal court level, you aren’t going to find a whole lot of public detail. And obviously, I don’t know the particlars of your friend’s situation, so I have no idea what kind of asylum case he might have. But good luck in any case.
