State OKs Migration of Same-Sex Partners, But for Diplomats Only

By David North on March 8, 2011

The U.S. State Department has quietly made it legal for some Americans to migrate their alien same-sex partners to the U.S. – but it has done so only for diplomats.

Run-of-the-mill citizens can get visas for alien spouses only in male-female marriages, but the ever-creative State Department has figured a way around that law, but only for its own diplomats. Earlier it made roughly comparable arrangements for diplomats from other nations.

The most recent change involved the rules of the nonimmigrant scholar and worker program that brings exchange visitors to the U.S. on J-1 visas. Unique among nonimmigrant arrangements under American law, this one is run by (and maybe for) the State Department only. Most other nonimmigrant programs involve two or three cabinet departments, such as Homeland Security and Labor; with some decisions in those programs appealable to the Justice Department.

The new rules, which did not involve any action by the Congress, have yet to attract much press attention. The only journalistic report I have seen, so far, was in the New York Daily News of February 23.

I am not a homophobe and do not much care whom our diplomats sleep with, as long as it does not endanger national security. But I am appalled by this instance of in-house favoritism; an instance in which the gatekeepers (diplomats and consular officials) create a more generous set of rules for themselves than for the population generally.

It is as if the dentists of America had a secret formula for whiter, brighter teeth that they only used on themselves and their families, but refused to give to their dental patients. Or if Wall Streeters got loans on more favorable terms than homeowners – which, come to think of it, is a bit more than a metaphor.

Why and how did State do this?

In part, it all dates back to the Congress of Vienna, and the invention of diplomatic reciprocity. If you treat our diplomats in a certain, prescribed manner, we will treat your diplomats at least as well. In broad terms it makes sense.

I gather indirectly that some nations must have grumbled to State, in years past, that their diplomats could not bring their same-sex partners to the U.S., and so those nations erected bars to the partners of U.S. diplomats in their countries.

To cope with that problem State broadened the rules for foreign diplomats and employees of multinational organizations (i.e., people traveling on either A or G visas); the change in the rules (reported in a blog of mine last year). This made it possible for lovers of foreign diplomats to work legally in the U.S.; this was done by extending legal work privileges beyond the "family" of the diplomat to that person's "household".

That took care of the visiting diplomats with same-sex partners, but what about our own people when they returned for a home assignment and wanted to bring along their non-citizen same-sex partner?

According to the Daily News article, a cable was sent to our embassies overseas saying, in effect, about the diplomats: "If they're posted to the States, their foreign same-sex partners can get a special visa to live and work here legally."

These visas turn out to be within a new portion of the J-1 Exchange Visitor Program. I previously described another controversial element of the J-1 program, one that takes 100,000 or so summer jobs from America's young people every year; a program that provides no labor market protections for the arriving alien youngsters who are often exploited.

Meanwhile, according to the Daily News, a spokesman for the gay community, while welcoming the specific action of the State Department, said that such a policy change should be made for all Americans, not just diplomats.