Binational couple rights

[macktheknife]

Hi everyone! We're a Bi-national couple, living in the US. One is American, one is European.
The European arrived in last year with ESTA which expires Oct' 2013. However the passport was stamped for 90 days. Wanting to reach out to somebody familiar with the law regarding any legal rights for him to stay here in the US or to depart without incident at the border. We would like to live together and get married legally either in the States, Canada or back in Europe. What would be the difference with the green card if we'd live in NYC, DC or LA where the gay marriage is legal?

[Blue]

I'm not familiar with all of the individual state laws but, since same sex marriage is not recognized outside of the few areas it is legal in here, his best bet would be to talk to immigration officials and, start the process of becoming a citizen, regardless of your relationship status.

[EvenOlderButWiser]

Welcome to Gayspeak Mac

Well Im no expert on this subject, but I can give you some advice from my limited experience with my mom.

First off the ESTA gives him absolutely no legal right to remain in the USA past the 90 day stamp in the passport. Its just designed to allow for a smoother passage through US border controls at the main entry points, as many times as you want within the two year valid date.

My mom (British) married her current husband (US Citizen) two years ago. They are both seniors.

The wedding took place in the UK, and three months later they both returned to the USA where she started the "green card" process. To cut a long story short, she overstayed the 90 days by 3 days (she had been ill so couldn't travel on their planned date back to the UK) They both returned to the UK a few days later, and thought nothing of it. There was no drama at US border control on exit etc.

They were in the UK for two months, booked their return flights etc and headed back to Boston. ESTA still valid for my mom. Simple right? WRONG big time. She arrived in Boston presented her passport at US Border control, was immediately arrested, detained for 6 hours and deported back to the UK the same day as an illegal alien who had previously overstayed her 90 day visa (Remember this is an 80 year old senior, already married to her US husband for 8 months at this point, and the green card process for her as a spouse had already been started) Husband was allowed entry. He immediately came straight back to the UK on the next available flight. Its taken them a YEAR of form filling, US Embassy and State Department involvement (and the intervention of his Congressman) for her to be allowed back into the US and restart the green card process.

So my message is very clear here. If your bf has already exceeded his 90 day stay in the US he will be classed as an illegal, regardless of any relationship he has with you. If he then leaves the continental USA, he will be denied re-entry.

The good news is, if he has not exceeded the 90 days, then you need to arrange for him to leave - even if for a day, and re-enter the USA through a recognised border crossing and have his passport re-stamped with a new 90 day visa. In the meantime you can start off the green card process. But be warned, its an extremely complicated process and I strongly advise you to engage some legal assistance in the matter.

Good luck

[OrphanPip]

He should visit the nearest consulate or embassy for his nationality to ask about the paperwork required for him to stay longer. It is true that if he has overpassed his stay without having gone through the proper channels that he will be bared from returning to the country for a certain period. This is standard, I know of an American-Canadian couple where the American ended up barred for a year for not following the proper channels, and they were married as well.

Gay marriage is not federally recognized in the US, so it doesn't apply to citizenship rights.

Your bf should apply for a visa. This is often not very difficult to obtain for Europeans, depends on his job skills, age, and education. He may have to return to his country in order to file all this paperwork, it might take a long time for him to get back to the US. There might also be sponsorship programs for immigration of same-sex partners, even if gay marriage is not legally recognized. But that usually requires that you have lived together abroad as a family for at least a year.

[macktheknife]

Hey Guys, thanks everyone for the responses. And of course Happy New Year!