Monday, July 30, 2018

Comity of Errors: The Stealth Attack on LGB Diplomats and International Organization Employees You've Never Heard About

by Diane Klein

Change is afoot in official U.S. policy towards lesbian, gay, and bisexual foreign diplomats and international organization employees serving in the United States.  With so much attention rightly being paid to the crisis at the border, caused by the Trump Administration's cruel and shameful family separation and border control policies, it's understandable that another family separation policy - this one directed at a much more "elite" group - has escaped our notice.  But its toxic blend of racism, xenophobia, and homophobia makes it an unmistakably Trumpian hat trick.

The latest change in policy is signaled by a letter sent to at least one U.N. organization on July 20, 2018, published here for what is believed to be the first time.  The letter is not yet embodied in a Diplomatic Note, the official form of communication between the U.S. government and foreign governments, although it is similar in form.  The upshot of the letter is that life is about to become much more difficult for foreign same-sex couples from any of the more than 80 countries that would not recognize their unions.  More specifically, same-sex partners of LGB employees of international organizations (like the UN), from countries not recognizing same-sex marriage, may no longer qualify for the "derivative" visa that allows them to live with their spouse or partner in the U.S.  Even if the couple are already living here and married under U.S. law, if the "sending State" (their home country) does not recognize same-sex marriage, their marriage may cease to be "accredited" for visa purposes, potentially breaking up families headed by LGB couples, one of whom may be forced to leave the U.S. on as little as 30 days' notice.  The new policy goes into effect just two months from now, on October 1, 2018.

The letter received by the international organization was shared with me by a U.S.-based, UN employee who was not yet willing publicly to share either their name, or the name of the specific organization they work for, although neither I, nor other UN employees who have read it, doubt its authenticity. (All emphasis is in the original.)
To whom it may concern:
The Department of State wishes to inform your organization of upcoming policy changes with respect to eligibility as an immediate family member for G-4 nonimmigrant visas and acceptance of accreditation of foreign same-sex domestic partners of officers and employees of international organizations serving in the United States.
Consistent with changes to Department of State's policy, the Department will only accept the accreditation of spouses of newly arrived officers and employees of international organizations, both same-sex and opposite-sex, as members of the family of the respective international organization as of October 1, 2018.  Further, consistent with internal Department of State policy changes, partners accompanying officers and employees of international organizations or seeking to join the some must be married in order to be eligible for a derivative G-4 nonimmigrant visa or to seek a change into such status beginning October 1, 2018.
For all currently accredited same-sex domestic partners of officers and employees of international organizations serving in the United States who wish to maintain their derivative G-4 nonimmigrant visa status and acceptance of accreditation, the respective international organization is requested to submit appropriate documentation to the Department's Office of Foreign Missions (OFM), no later than December 31, 2018, that the couple has legally married.  After December 31, 2018, unless such individuals are able to obtain separate authorization to remain in the United States through a change of nonimmigrant status with the United States Citizenship and Immigration Services, they will generally be expected to depart the country within thirty days.  However, on or after October 1, 2018, partners of officers and employees of international organizations applying for a visa renewal in the United States must be married in order to qualify for a derivative G-4 visa.
The requirements for eligibility of acceptance of accreditation as a spouse are the same for all spousal relationships and include the following: a spouse must not be a member of some other household and must reside regularly in the household of the principal.  Same-sex spouses of officers and employees of international organizations will be treated the same as opposite-sex spouses when applying for a G-4 visa and for other immigration purposes.  When notifying OFM of new spouses of officers and employees of international organizations for accreditation, the respective international organization is requested to submit appropriate documentation that the couple is married. 
Questions regarding this policy update may be directed to OFM at OFMMMA@state.gov.  
This letter is about G-4 visas, held by foreign employees of international organizations, like the United Nations, posted in the United States.  So, to understand this letter and its effect, we need to understand something about visa law.  Even with that knowledge, however, it is not entirely clear what this letter means, or how it is likely to be implemented in the months to come.  At the very least, it injects an unwelcome dimension of uncertainty into the lives of LGB international organization employees here in the U.S.

To start at the beginning: most non-citizens present in the U.S. must have a visa.  Although we often colloquially refer to all foreign-born non-citizens living in the U.S. as "immigrants," this is not technically correct.  Some foreigners living and working in the U.S. hold what are called "nonimmigrant" visas, which permit them to remain here legally for an extended time without any intention of becoming U.S. citizens or remaining permanently.

There is a veritable "alphabet soup" of such visas, depending on what the person is doing while here.  Among the most elite and selective of these is the A-1 visa, for diplomats (like Ambassadors).  About 10,000 of these are issued each year.  Other government officials, consular employees, some military representatives, and representatives of the African Union and European Union, obtain A-2 visas (about 100,000 per year).  As the U.S. Embassy U.K. website explains,  "To qualify for an A-1 or A-2 visa, you must be traveling to the United States on behalf of your national government to engage solely in official activities for that government."  Unlike most nonimmigrant visas, A-1 and A-2 visas do not impose a maximum length of stay or require a fee.  There are also several varieties of NATO visas (about 6000 NATO visas are issued per year), with similar privileges.  Government representatives to international organizations, like the United Nations, qualify for G-1, G-2, and G-3 visas (with a combined total of about 20,000-25,000 visas each year.)

An important distinction between the holder of a G-4 visa, and the holders of A-1, A-2, G-1, G-2, G-3, and NATO visas, is that holders of G-4 visas are not representatives of their home country governments.  They are employees of international organizations, typically are headquartered outside the United States, with priorities that may or may not align with those of their home country governments.  However, like the holders of those visas, the immediate families of G-4 visa holders are eligible for what are called "derivative" nonimmigrant visas, entitling them to accompany the principal visa holder to the U.S.  This allows employees of entities like the United Nations, the World Bank, the Organization of American States, the Inter-American Commission on Human Rights, the Office of the United Nations High Commissioner for Human Rights, or the Inter-American Development Bank, to live with their spouses and raise their families together as they pursue their careers and do the important work of these organizations.

It should come as no surprise that some of these G-4 visa holders are lesbians and gay men from all over the world.  In fact, there is a UN employee organization dedicated to "fighting for the equality and non-discrimination of LGBTQI staff in the UN system and its peacekeeping operations," called UN-GLOBE, and a similar one at the World Bank Group.  Many of these employees come from countries that do not recognize same-sex marriage; some come from virulently homophobic countries, which continue to criminalize same-sex sexual conduct, or even impose the death penalty.  For them, work in the U.S. for an international organization has offered a safe haven.

During the first year of the Obama Administration, the U.S. State Department, under Secretary of State Hillary Clinton, took significant steps both to protect the same-sex partners of U.S. citizens serving abroad, and to confer greater relationship recognition on foreign same-sex couples living and working in the U.S., whose home countries did not recognize those relationships.  By a Diplomatic Note dated November 4, 2009, the U.S. State Department included same-sex domestic partners of foreign nationals in the definition of  "family" who qualified for derivative visas.  Despite the fact that the U.S. itself was highly polarized on the issue, with same-sex marriage established in some states and outlawed by constitutional amendment in others, the Obama Administration came down clearly in support of LGB rights. These State Department policies were strengthened after U.S. v. Windsor conferred federal recognition of same-sex marriage in 2013, and Obergefell v. Hodges made same-sex marriage available in every U.S. state in 2015, although those decisions also resulted in policies effectively requiring marriage (thus disfavoring domestic partnerships or civil unions) for derivative visa eligibility.

At the same time, in 2014, the UN itself adopted a policy for employment benefits under which "personal status" (including marital status) "will be determined by reference to the law of the competent authority under which the personal status has been established."  In other words, regardless of their country of origin, a couple validly married in New York or Washington, D.C., was entitled to spousal employment benefits.

The somewhat-technical nature of these changes (a changed definition of "family" in the CFR, changed requirements for the accreditation necessary to obtain derivative visas, and revised rules about partner benefits for UN employees) should not obscure the huge impact of these policies: international organizations were able to attract and retain talented LGB employees from countries that greatly limited their opportunities, and enable them to bring their partners and build families in the United States.  These were not only life-changing, and in some cases, life-saving, opportunities for the individuals involved - they were also smart employment policies for the international organizations themselves.  It enabled them to seek the best talent in the world, and enhance the stature of the United States as a leader in civil rights and human rights for LGB persons.

And now - all of that may be in jeopardy.  If the policy of the July 20 letter is interpreted to mean that only those persons certified by their sending State as legally married will be eligible for derivative visas, then a significant number of holders of G-4 visas will find themselves faced with a choice between their career and their partner and family, simply due to the misfortune of coming from a country without relationship recognition.  Rather than providing moral and legal leadership and career opportunity, the U.S. is opting to further burden and punish those already suffering discrimination as members of sexual orientation minorities.

By Diplomatic Note 18-1029, issued July 6, 2018, the Department of State appeared to impose the same (or a very similar) policy on holders of A-1, A-2, G-1, G-2, G-3, and NATO visas (as well as C-3 transit visas).  Even as recently as July 19, 2018, the World Bank Group issued guidance that states, "Same-sex domestic partners and same-sex spouses are eligible for dependent G4 visas to enter and reside in the U.S."

And yet, Note 18-1029 concludes,
As a matter of principle and reciprocity, in countries where same-sex marriage is not legally available and the sending State is unable to accept the accreditation of the same-sex spouses of members of the U.S. diplomatic and consular posts abroad, the same-sex domestic partner would not be eligible for the derivative A-1 or A-2 [C-3, G-1, G-2, G-3, and NATO] visa and will not be accepted for accreditation as a member of the family forming part of the household, eligible for the same privileges and immunities as a spouse while the principal serves in the United States. 
This reference to "principle and reciprocity" is a backhanded abuse of the idea of comity on which it purports to rely (but actually violates).  For centuries, the basic marriage-favoring principle of comity was that a marriage valid when and where contracted was valid everywhere.  This is the principle the UN endorsed in its employment policies in 2014.  As hoary an authority as Joseph Story, in his 1834 Commentaries on the Conflict of Laws (Sec. 113) states,
The general principle certainly is (as we have already seen) that between persons sui juris marriage is to be decided by the law of the place where it is celebrated. If valid there, it is valid everywhere. It has a legal ubiquity of obligation. If invalid there, it is equally invalid everywhere. 
This idea - that the law of the place where the marriage occurs, and not the domicile of the spouses, controls - has been relied on as recently as 2017, in the Wisconsin case of Xiong v. Vang.  In the past two decades, however, resistance to same-sex marriage upset this traditional principle, leading to such temporary deviations as 1996's so-called "Defense of Marriage" Act (DOMA), rightly held unconstitutional by Windsor (federal recognition) and Obergefell (interstate recognition) taken together - and this latest U.S. policy.

Moreover, the language of 18-1029 deliberately elides the difference between pressuring a foreign government that refuses to accredit U.S. same-sex spouses to afford comity to U.S. marriages and marriage law, and punishing foreign individuals by refusing to offer derivative visas to them, for no better reason than that their own government is hostile to their relationships.  A homophobic government is hardly going to be induced to recognize U.S. same-sex marriages by the "threat" that the U.S. will not recognize same-sex marriages among their citizens, when that is government policy already.  This simply amounts to the U.S. joining with that homophobic foreign government to further oppress its LGB citizens, by depriving them of the opportunity to live and work in the U.S. with their partners.  What "principle" does it uphold to interpret "reciprocity" this way? To pretend this is standing up for U.S. LGB couples posted abroad just "pinkwashes" this legally and morally indefensible stance.

What remains unknown is precisely how these policies will be interpreted and implemented.  Will the State Department require accreditation of marriage from the sending States, knowing that many such States do not recognize same-sex unions of any kind?  Or will derivative visas continue to be issued as they (sometimes) have been, on the strength of international organizations' own certification of marriage, often based on a marriage contracted in the United States, between the G-4 principal, and a partner visiting (for example) on an F-1 student or a B-2 tourist visa?  What of persons from those sending States that provide some level of relationship recognition, without full marriage equality, like Italy?  Or those that have flip-flopped, like Bermuda?  Will LGB international organization employees and their partners and families be needlessly subjected to the vagaries of ever-shifting and often-repressive home country policies on relationship recognition?  At this point, it seems impossible to say.

(In the bumbling yet underhanded way that has become typical of the Trump Administration, and particularly its immigration policies, the travel.state.gov page still contains its post-Windsor 2015 update, and makes no mention of 18-1029.  Should follow-up information be received from the OFM, the UN, or others with direct knowledge, a follow-up post will be forthcoming.)