Historically, U.S. immigration law has discriminated against gays and lesbians, who have only been able to lawfully immigrate to the United States for the last 25 years.
The Immigration Act of 1917 excluded gay and lesbian individuals from immigrating into the U.S. by denying admission to individuals who were found to be “mentally defective” or who had a “constitutional psychopathic inferiority,” which the then Immigration and Naturalization Service (INS) interpreted to include gays and lesbians, in accordance to a U.S. Public Health Service a definition for “homosexual.”2 The Immigration and Nationality Act (INA) of 1952 continued this exclusion by denying admission to “aliens afflicted with a psychopathic personality, epilepsy, or a mental defect,” which the U.S. Supreme Court interpreted to include gays and lesbians as well.
Between 1993 and 2010, the Department of Health and Human Services (HHS) designated HIV as a “communicable diseases of public health significance” that made a person inadmissible to the U.S. under the health-related grounds of inadmissibility. The so-called “HIV ban” prevented many gay men from visiting or immigrating to the U.S. during the years it was in place. Before the ban was lifted, LGBT advocates raised the concern that the HIV ban discouraged some LGBT foreign nationals already living in the United States from seeking testing and medical care in connection with HIV because of the possible risks involving their immigration status, in addition to the stigma that the ban promoted.9 In 2010, under President Obama, HHS finally removed HIV from the list of inadmissible communicable diseases, following the enactment in 2008 of the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act, pursuant to which HHS was no longer required to so designate the disease.
Finally, same-sex couples were denied immigration benefits based on marriage until 2013, when the Supreme Court declared unconstitutional the Defense of Marriage Act (DOMA) in the case of United States v. Windsor, 133 S.Ct. 2675 (2013), and, until 2012, transgender immigrants were required to prove that they had undergone sex reassignment surgery in order for the U.S. Citizenship and Immigration Services (U.S.C.I.S.) to recognize their gender transition by reflecting their correct gender marker on official documents.
Dealing with Specific Issues such as Document Production
Before 2012, U.S.C.I.S. policy did not recognize a person’s gender transition unless that person provided proof that they had undergone sex reassignment surgery. If they could provide such proof, a transgender person could access marriage-based immigration benefits only if they could also show that their gender transition had allowed them to enter into a heterosexual marriage. In April of 2012, after much successful advocacy on the part of transgender immigrants and their representatives, U.S.C.I.S. finally issued a new memorandum clarifying its policy regarding the assignation of appropriate gender designations on documents issued to transgender individuals.
According to this policy, sex reassignment surgery is not required in order for U.S.C.I.S. to issue the requested document in the new gender. U.S.C.I.S. will issue an initial or amended document reflecting the individual’s post-transition gender if the person presents either:
- An amended birth certificate, passport, or court order recognizing the new gender; or
- Medical certification of the change in gender from a licensed physician (a Doctor of
Medicine (MD) or Doctor of Osteopathy (DO)).
*Note that statements from persons who are not licensed physicians, such as psychologists, physician assistants, nurse practitioners, social workers, health practitioners, or chiropractors, are not acceptable.
For specific guidelines on how to obtain documents please contact our experienced immigration attorneys at 617-536-0584 or by filling out our Contact Form.
Marriage-Based Immigration for Same-Sex Couples
In June of 2013, the U.S. Supreme Court struck down this law in the case of United States v. Windsor, 33 S. Ct. 2675 (2013), making marriage-based benefits available for same-sex couples. Because United States citizens (USCs) and lawful permanent residents (LPRs) can help their foreign spouses immigrate to the United States, U.S. v. Windsor has made this process available to same-sex binational and dual non-citizen couples.
Legal Standard for Same-Sex Marriage
Neither the term “marriage” nor “spouse” is defined in the Immigration and Nationality Act (INA). However, in order to be valid for immigration purposes, a marriage must be legal in the place where it occurred. If the local law is complied with and the marriage is recognized, then the marriage is deemed to be legally “valid” for immigration purposes. There are some exceptions to this general rule. For example, marriages considered to be void under state law in the state of residence or as contrary to federal public policy, such as certain polygamous or incestuous marriages, cannot be recognized for immigration purposes even if the marriage is legal in the jurisdiction in which the marriage was executed. This is how the Defense of Marriage Act, or DOMA, prevented same-sex couples from accessing immigration benefits through marriage. DOMA specified that, for purposes of federal law, the term “spouse” could only be a person of the opposite sex.
However, even now that DOMA has been struck down, same-sex binational or dual noncitizen couples may have difficulty accessing immigration benefits through marriage, because marriage equality is still not in place in some U.S. states and most of the rest of the world. Therefore, the first step for such a couple will be to verify whether or not they have the option to get married in the U.S. state or country in which they are currently residing. If a marriage is not possible, the couple must consider travelling to another state or country in order to get married. At that time, it will be very important to verify the requirements to obtain a lawful marriage, especially if there are any residency requirements.
List of U.S. States with Dates of Same Sex Marriage Legalization
Date Same Sex Marriage Legalized
|Alabama||9 February 2015|
|Alaska||17 October 2014|
|Arizona||17 October 2014|
|Arkansas||26 June 2015|
|California||28 June 2014|
|Colorado||7 October 2014|
|Connecticut||12 November 2008|
|Delaware||1 July 2013|
|Florida||6 January 2014|
|Georgia||26 June 2015|
|Hawaii||2 December 2013|
|Idaho||13 October 2014|
|Illinois||1 June 2014|
|Indiana||6 October 2013|
|Iowa||24 April 2009|
|Kansas||12 November 2014|
|Kentucky||26 June 2015|
|Louisiana||26 June 2015|
|Maine||29 December 2012|
|Maryland||1 January 2013|
|Massachusetts||17 May 2004|
|Michigan||26 June 2015|
|Minnesota||1 August 2013|
|Mississippi||26 June 2015|
|Missouri||26 June 2015|
|Montana||19 November 2014|
|Nebraska||2 March 2015|
|Nevada||9 October 2014|
|New Hampshire||1 January 2010|
|New Jersey||21 October 2013|
|New Mexico||19 December 2013|
|New York||24 July 2011|
|North Carolina||10 October 2014|
|North Dakota||26 June 2015|
|Ohio||26 June 2015|
|Oklahoma||6 October 2014|
|Oregon||19 May 2014|
|Pennsylvania||20 May 2014|
|Rhode Island||1 August 2013|
|South Carolina||20 November 2014|
|South Dakota||26 June 2015|
|Tennessee||26 June 2015|
|Texas||26 June 2015|
|Utah||6 October 2013|
|Vermont||1 September 2009|
|Virginia||6 October 2014|
|Washington||9 December 2012|
|West Virginia||9 October 2014|
|Wisconsin||6 October 2014|
|Wyoming||21 October 2014|
|* Washington, D.C.||3 March 2010|
Countries that Recognize Same Sex Marriage (in order of legalization date)
|Country||Date Same Sex Marriage Legalized|
|The Netherlands||1 April 2001|
|Belgium||1 June 2003|
|Spain||3 July 2005|
|Canada||20 July 2005|
|South Africa||30 November 2006|
|Norway||1 January 2009|
|Sweden||1 May 2009|
|Portugal||5 June 2010|
|Iceland||27 June 2010|
|Argentina||22 July 2010|
|Denmark||15 June 2012|
|Brazil||14 May 2013|
|France||29 May 2013|
|Uruguay||5 August 2013|
|New Zealand||19 August 2013|
|United Kingdom||17 July 2013|
|Luxembourg||18 June 2014|
|Finland||28 November 2014|
|Ireland||23 May 2015|
|United States||26 June 2015|
Additionally, the Mexican states of Coahuila and Quintana Roo, along with the Federal District of Mexico City, also allow same-sex marriages in Mexico, which does not yet otherwise recognize marriage equality nationwide.
Please note that only countries with marriage equality are listed, because only those legal marriages will be recognized by the USCIS and the U.S. State Department for purposes of federal immigration law. Civil unions or similar legal protections for same-sex relationships will not meet the U.S. federal definition of a legal marriage. For example, Ecuador, Germany, Greenland, Hungary, Ireland, and Scotland are countries that offer many similar legal rights and protections to those of a marriage, without conducting actual legal marriages for same-sex couples. Unfortunately, couples who have registered to obtain such benefits in those countries will not be able to obtain approval of an immigrant visa petition as a married couple based on a “civil union.”
Family reunification is one of the hallmarks of our immigration system. To promote family reunification, immigration law grants preferential treatment to immediate relatives of U.S. citizens, which allows them to legally enter and remain in the United States. “Immediate relatives” for immigration purposes include children, spouses, and parents of a citizen of the United States. Under DOMA, however, LGBT binational families were at risk of separation since the law prevented recognition of their marriages and, in turn, prevented them from accessing these sponsorship benefits provided to other families.
U.S. citizens and LPRs are eligible to bring their unmarried children who are under 21 years of age to the United States. Immigration law employs terms such as “born in wedlock,” “adoption,” and “stepchild” to define recognized parent-child relationships. Prior to the Supreme Court’s removal of Section 3 of DOMA, the definition of family for immigration purposes assumed all families were comprised of married heterosexual couples raising biological or adopted children. But LGBTQ families are formed in myriad ways. The children in these families may have been adopted or may be the biological children of only one spouse. The children may also have been born through artificial insemination or surrogacy. In some instances, state laws may not recognize the relationships between these children and both of their parents. Under DOMA, the U.S. citizen or LPR spouse who was not biologically related to the child or on the adoption forms was not able to have his or her relationship to the child recognized under immigration law because his or her marriage was not recognized by the federal government.
Family reunification provisions are important for binational LGBTQ couples, especially since 47 percent of same-sex couples that include one noncitizen and one naturalized citizen are raising children, and a quarter of binational same-sex couples that include one native-born citizen are raising children. Under DOMA, the “born in wedlock” category could not be applied to children of LGBTQ binational couples because, while adopted children are recognized in immigration law, many states do not permit LGBTQ couples to adopt. In cases where the foreign spouse had biological children and the U.S. citizen or LPR lived in a state where he or she could not legally adopt them, the U.S. citizen spouse or LPR was unable to apply for immigration benefits for the children because they were not recognized as belonging to the citizen or LPR.
Now that the federal government can recognize same-sex marriages, LGBT binational families have access to the same family-reunification immigration benefits as other families. With the demise of Section 3 of DOMA, U.S. citizens and LPRs who file an application for lawful permanent residence for a spouse can also do so for the spouse’s children as their own stepchildren.
Protecting domestic violence survivors from deportation
The Violence Against Women Act, or VAWA, allows certain categories of abused immigrant spouses and their children to self-petition for permanent residency in the United States and receive employment authorization and public benefits. This provision recognizes the fact that an immigrant without legal immigration status in the United States may be reluctant to leave his or her abuser due to fear of deportation. VAWA provides survivors with a means of escaping violence and establishing safe and independent lives.
The 2013 reauthorization of VAWA recognizes that LGBTQ couples are unfortunately not immune to domestic violence and included expanded services for LGBTQ survivors of domestic violence. It did not, however, extend the immigration protections available to abused spouses in same-sex relationships because its use of the term “spouse” was restricted to opposite-sex couples by Section 3 of DOMA.
With the fall of Section 3, VAWA’s definition of spouse is expanded to cover LGBTQ couples. LGBTQ abused spouses and children of U.S. citizens and LPRs are therefore now eligible to remain in the United States even after leaving their abusers. Furthermore, abused LGBTQ spouses of U.S. citizens or LPRs and their unmarried children under 21 years of age may qualify for permanent residency under VAWA, even if the children are not related to the abusive U.S. citizen or LPR. The non-abused, same-sex spouse of a U.S. citizen or LPR whose child is abused by the U.S. citizen or LPR spouse may qualify as well—even if the child is not related to the U.S. citizen or LPR abuser.
Admitting fiancé(e)s of U.S. citizens and their children
Another immigration benefit that same-sex couples can now access is the K visa, which allows fiancé(e)s and their unmarried minor children of U.S. citizens to legally enter the United States so they can be together and married within 90 days of admission. It also allows the fiancé(e) to immediately apply for work authorization. Once married, the foreign citizen is eligible to adjust his or her status to become an LPR.
K visas were introduced to prevent lengthy separation of engaged couples and to promote family unification. Now that Section 3 of DOMA has been repealed, LGBTQ binational couples can be together even before their wedding. This allows them the opportunity to not only be legally married in the United States among their friends and family but also gives them time to be together in the United States for up to three months before the actual wedding so they can plan the event and care for their children.
Recognizing follow-to-join benefits
Some LGBTQ Lawful Permanent Residents who were married or had children before becoming LPRs and whose spouses or children did not accompany them to the United States are now eligible for follow-to-join benefits. Follow-to-join benefits mean that the spouse or children who did not physically accompany the LPR to the United States do not have to wait any extra time for a visa number to become available. Instead, the LPR simply must notify a U.S. consulate that he or she is an LPR so the spouse can apply for an immigrant visa. With the repeal of Section 3 of DOMA, the marriages of same-sex couples are recognized by USCIS, and LGBTQ families can now be expeditiously reunited.
Allowing undocumented spouses to apply for a hardship waiver
People who entered the United States unlawfully must first leave the country before they are eligible to apply for a green card. Immigration law bars spouses and children of U.S. citizens who have been in the United States without authorization from being legally admitted to the country as an LPR for either 3 years or 10 years, depending on how long they were in the country before leaving and whether they left voluntarily or were deported before applying for LPR status. Unless these immigrants first obtain a hardship waiver, they must wait a specified number of years before getting a green card.
Hardship waivers lessen the amount of time an undocumented immigrant must wait before applying to be an LPR and are only available for immigrants who are the spouse or child of a U.S. citizen. Before DOMA fell, undocumented LGBTQ immigrants married to U.S. citizens were ineligible for a waiver to shorten the time before they were eligible to reunite with their families in the United States and become LPRs. Now that marriage between LGBTQ undocumented immigrants and U.S. citizens or LPRs is recognized, these couples are eligible to apply for a hardship waiver.
Furthermore, beginning in March 2013, U.S.C.I.S. began to allow hardship applications to be adjudicated in the United States, shortening the time that an immigrant is separated from his or her family in the United States by allowing individuals to remain in the country while U.S.C.I.S. makes a decision on the waiver. As a result, LGBTQ undocumented immigrants married to U.S. citizens or LPRs are now separated from their families for a shorter period of time while applying for an immigrant visa that allows them to be reunited with their families.
Asylum Protection for LGBTQ Immigrants
Many LGBTQ individuals from around the world come to the United Sates (U.S.) to seek protection from various forms of persecution. For example, in some cases, these individuals have experienced brutal violence such as rape and sexual assault as a consequence of homophobia, transphobia, biphobia, misogyny or a combination of these and other factors. In other cases, individuals have been subjected to a forced marriage or some form of medical procedure to “cure” them of their sexual orientation. These practices are often deeply rooted in culture and society and no official authority is willing or able to offer protection. Additionally, nearly 80 countries have laws that involve the criminalization of LGBTQ people.1 Therefore, LGBTQ individuals who have been hiding their identity for most of their life also come to the U.S. seeking the freedom to live openly as LGBTQ.
The common types of Harm Experienced by LGBTQ individuals are:
- Discrimination and harassment
- Physical violence
- Prosecution and punishment for LGBTQ identity
- Persecution in childhood
- Rape & sexual assault
- Forced medical treatment
- Persecution of HIV-positive person or persons with AIDS
- Gender-based persecution
- Economic persecution
- Mental, emotions and psychological harm
In many cases, LGTBQ individuals who have suffered harm or were threatened with harm as a result of their status as an LGTBQ individual have viable claims for asylum. It is important to stress that applications for asylum must generally be filed within one year of an individual’s entry to the United States.
Asylum applications are legally complex and highly complicated. If you believe that you might have a claim for asylum, you should speak with an experienced immigration attorney.
U Nonimmigrant Status & Other Options for Vulnerable LGBTQ
U nonimmigrant status (also commonly referred to as a “U Visa”) is an immigration remedy available to non-citizens who have been victims of serious crimes that resulted in substantial physical or mental harm where the victim can provide certification from a law enforcement official that they are, have been, or are likely to be helpful in the criminal investigation or prosecution of the crime. This is a particularly important immigration benefit for which to screen when working with undocumented LGBTQ immigrants due to the heightened vulnerability of these immigrants to violent crimes.
According to the National Coalition of Anti-Violence Programs (NCAVP), who published a report on Hate Violence Against LGBTQ and HIV-Affected Communities in the United States in 2013, “[what] emerges clearly in the findings of this year’s report is that many of the people at risk for the most severe hate violence are at the intersection of multiple forms of oppression and discrimination including racism and citizenship status.”1 The report found that LGBTQ undocumented individuals, transgender women, people of color and gay men face the most severe forms of violence.
To assess whether you might be eligible for the U visa please visit our U Visa page at: http://www.immsolutionsllc.com/immigration/visas-victims-crimes-abuse/u-visa or call us: 617-536-0584.
For details and assistance in filing for any LGBTQ immigration relief, contact us at 617-536-0584, firstname.lastname@example.org.