Answers To Immigration Questions

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The questions listed here were answered by an American immigration lawyer, J Craig Fong, Esquire. They relate to common questions asked concerning immigration into the United States of America.

Since the questions are of a general nature, it is not possible for definitive answers to be provided. Although your own situation may seem similar to the examples offered, it is not possible to be certain that the advice given would apply to you.

For specific questions about your own circumstances, you should arrange to see an immigration lawyer.

However, the information listed is a useful guide to general concerns.

The law changes frequently. Note that this information was updated 21 October, 1995

Questions answered are:

Question: When can the INS reject 'marital status'?

On what grounds can the INS claim that a marriage is not a "real" one? Do they have to prove anything? Does the American spouse have any way of fighting it? If the marriage is deemed unacceptable (and no money has changed hands), can criminal charges be brought against either or both of the two parties?


The INS can use any grounds to claim that a marriage is fraudulent. The question is whether or not they can prove it.

Usually, the Service's suspicions begin when the couple is unable to answer legitimate questions about their meeting, marriage, and living arrangements. At that point, the INS often separates the couple to ask questions. It is usually not any specific question that gives people away. It is a certain deer-in-the-headlights reaction, a nonspecific inability to respond fluidly that leads to suspicions. Then, the grilling begins.

Unfortunately, I have known almost no immigrant-US Citizen pairings (and I've known quite a few people with lots of chutzpah) who are able to withstand the onslaught of INS abuse and good-cop-bad-cop threats that will descend upon them if the INS truly chooses to get nasty. This kind of treatment usually causes one party or the other to "break" and admit the fraud (assuming of course that the marriage is actually fraudulent).

If one of the parties admits to the fraud, the INS does not have to prove anything. The parties have provided the evidence themselves.

Naturally, it is possible to challenge the INS' conclusions in Federal court, and in my estimation, a truly married couple would have almost no difficulty convincing a U.S. District Court judge of their bona fides.

Whether or not money changes hands, engaging in a marriage solely for the purpose of obtaining an immigration benefit is a Federal crime and is punishable by a fine or prison sentence.

Question: Can you obtain a visa without specialist qualifications?

If a person does not have the professional qualifications as a specialist in some field to apply for a Green Card, what other avenues can be used?


The assumption of the question is that the alien has no "professional qualifications." I do not know what this means. It is not necessary that every applicant for employment-based permanent residency have a Ph.D. Even auto mechanics can qualify. Without more specifics, I cannot answer this question.

The main avenues to legal residency are :

  1. family
  2. professional skills
  3. asylum
  4. diversity (lottery)

What about gay-friendly lawyers?

Can you provide the names of some gay or gay-friendly immigration lawyers?


I know of no gay or gay-friendly immigration attorneys aside from those with whom I am personally familiar on either the left coast or the right coast. In the middle of the country, I know no one.

If someone would like a referral to a California-based immigration attorney, they should contact the LA Gay & Lesbian Community Services Center's Legal Services Department at (213) 993-7670.

Question: Does HIV status affect an existing Green Card holder?

If you are legally in the United States for 25 years plus on a Green card, you test HIV positive, it turns to AIDS and you go on Social Security Disability, can you then be deported?


Someone in the US as a Legal Permanent Resident has the right to enter and exit the US more or less freely. However, HIV Disease (including HIV infection) is a ground of exclusion, and any seropositive non-US citizen who attempts to enter the United States is subject to this exclusion. This is true for Permanent Residents as well as holders of nonimmigrant visas. The only exception to this are
  1. those with HIV waivers
  2. US citizens.
US citizens are not subject to grounds of deportation or grounds of exclusion. Therefore, unless the Legal Permanent Resident has received a "waiver" of this ground of exclusion from the INS, s/he is subject to exclusion.

Those seeking a waiver should consult with experienced immigration counsel who know about HIV waivers. Do not retain immigration counsel for HIV-related matters unless you are assured that they know what they're doing re: HIV.

"How," one may ask, "does the INS know if one is seropositive?"

Usually, the alien tells them in response to a question, or HIV-related material or drug is found with the alien's personal effects.

Exclusion from entry to the US is not the same, however, as deportation. Exclusion happens when someone is outside seeking to enter. Deportation happens when someone is inside and the US seeks to expel them. HIV Disease is, at the present writing, not a ground for deportation.

Our Republican friends in Congress would dearly love to change this, but we seem to be holding the line on the issue for now.

The only real safety is for the alien to naturalize. US citizens are not subject to exclusion or deportation. By the way, HIV infection, disability status, receipt of SSDI, and, for that matter, "homosexuality" are not grounds to deny naturalization. With the coming restriction of Social Security and other benefits, including Medicaid and AFDC, to US Citizens only, I would generally advise Legal Permanent Residents to naturalize as soon as possible. This is especially true for those who might be currently receiving public benefits or who might need to rely on such benefits in the near future.

Question: How does the Lottery Work?

Tell me more about the visa lottery process. I know about the application process. What happens once your name is drawn in the lottery? What are the requirements that they are looking for you to fulfill? If you are selected in the lottery, should you consult a lawyer to prepare your documents and prepare you for the interview or is it a fairly straight (no pun intended)forward process? Can it be detrimental to your application to mention your same-sex relationship as the reason you want to immigrate? What other opportunities will there be for immigration if congress abolishes the program?


The Diversity Visa program, also known popularly as the "lottery," changes frequently. I would have to do a little research to check on current qualifications and requirements. Suffice it to say that it is Congress' attempt to increase the number of Europeans emigrating to the United States. The program is not designed to benefit people from Asia or Latin America in any appreciable way.

If one is selected for a Diversity Visa, the State Department will send the successful candidate biographic forms that must be filled out and sent to the candidate's processing location - usually the nearest U.S. Embassy or Consulate-General. These forms are very similar to Form I-485 Application for Permanent Resident Status that is used domestically by the U.S. Immigration & Naturalization Service.

If a successful diversity applicant is not subject to any ground of exclusion, has never been convicted of a crime, and is not at risk of becoming a public charge, then it is probably not necessary to retain an attorney to help with what is essentially an uncomplicated case. Any applicant who might even remotely be subject to exclusion should seek the assistance of legal counsel. When in doubt, get an attorney.

Regarding the mention of one's same-sex partner: I never NEVER recommend that people mention such relationships in the presence of INS and government officials. You are seeking a government benefit that is within their purview to bestow or withhold. It is no time for political statements. Besides, if one is selected under the Diversity Visa program, one does not need any explanation for why one is emigrating to America.

Finally, I doubt that Congress will shut down the Diversity Visa. It is one of the few on-going avenues for getting more immigrants of European origin--something that the majority of Congress is eager to do. The real concern is that Congress is going to restrict unification of families by shutting down family-based immigration.

Question: What will happen if same-sex marriage is made legal?

With regards to what is happening in Hawaii, how long do you think it will be before same-sex couples might be able to have their domestic partner immigrate to the United States? When do you think there will be the first test case?


What is happening in Hawaii is not domestic partnership. It is marriage. Not gay marriage. Simply marriage.

When gay and lesbian couples are able to legally marry their chosen partners, then it would only be just that the American citizen be allowed to immigrate his/her alien spouse.

Needless to say, it won't be that easy, and I expect a number of test cases to hit the courts within a month or two after Hawaii's Supreme Court rules in favor of equal marriage - something that should happen in [1997].

To answer the question more directly, I do not believe that Congress will ever permit gay and lesbian American citizens to immigrate their alien domestic partners. Spouses, probably - eventually. Domestic partners, I doubt it.

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Last Update 10/21/95