Immigration law provides many solutions for people who identify as LGBT and are looking to immigrate to the United States. Since the United States v. Windsor decision in June 2013, both the Department of Homeland Security and the Department of Justice have recognized valid same-sex marriages for immigration purposes.
Marriage equality is now recognized in every state. For immigration purposes, only a marriage will be valid. Those with civil unions, domestic partnerships, etc., should consult legal counsel prior to proceeding forward in their case.
Family-based Immigration
United States citizens may file visa petitions for their same-sex spouses. Couples will have to have been married in a country which recognizes the marriage as valid prior to filing a spousal petition. Where the foreign national is present in the United States, they may be eligible to file directly for their residency or green card without leaving the United States. Others, due to rather strict immigration laws, will have to depart the United States to seek an immigrant visa.
In addition, a United States citizen may file a fiancé petition for their foreign national partner if they are residing abroad and the couple is not yet married. The couple will have 90 days to marry after the foreign national partner arrives in the United States, and then will be eligible to file for their residency without leaving the United States.
Foreign nationals who are the beneficiaries of other classes of family-based visa petitions, such as adult son/daughter petitions, or sibling petitions, will likewise be able to bring their same-sex spouse as derivative beneficiaries, a legal term given to eligible immediate family members.
Given the legal recognition of a same-sex marriage, the federal government will also recognize step-children immigrating to the United States if the foreign national has children.
Employment-based Immigration
Foreign nationals who are the beneficiaries of other classes of business-based immigrant or non-immigrant visa petitions will also be able to bring their same-sex spouse as derivative beneficiaries, a legal term given to eligible immediate family members. Special visa classification is given to derivative spouses, depending on the classification of the principal beneficiary.
Waivers
For some people who are inadmissible to the United States due to a prior immigration violation or criminal issue, a waiver of inadmissibility may be a solution. The vast majority of waivers require a showing of a certain level of hardship to a qualifying family member, and usually includes a United States citizen or lawful permanent resident spouse. Naturally, with the federal recognition of same-sex marriage, any hardship that could be caused to the United States citizen spouse will be taken into account in the hardship context. This is particularly important if the foreign national’s country of citizenship is a country which is particularly tough on LGBT issues. Also, if one or both of the spouses is HIV positive, this may affect the hardship evaluation, as well. It is important to speak with your immigration lawyer about these issues and how they might impact a case.
Deportation
When a foreign national is being deported, and identifies as LGBT, it is incredibly important to seek legal advice from an experienced practitioner in the field. There are various forms of relief available from deportation or removal. Many of these types of relief require certain levels of hardship to be shown on a spouse, parent or child. Experienced immigration counsel can help identify those issues and determine which strategy best fits the case. Furthermore, with many countries persecuting openly identifying LGBT people, other humanitarian forms of relief, like asylum and withholding of removal may be sought before an immigration judge. Deportation is not only a very complicated area of immigration law, but people who identify as LGBT in deportation proceedings will have a more difficult time. It is important to discuss these matters with your immigration attorney.
Asylum
Asylum is a form of relief available to people who are afraid to return to their home country due to the potential for persecution based on certain traits, beliefs, or characteristics. People who identify as LGBT or who are HIV positive and are nationals of countries which permit the persecution of LGBT people should discuss filing for asylum with a competent immigration attorney. Asylum law is a very complex area of law, but has a lot of great potential for LGBT and HIV positive persons. Nobody should be returned to a home country that will either persecute them, or allow others to persecute them, based on their sexual orientation.
Transgender Issues
For the most part, USCIS has great policy guidance on transgender issues, but legal advice on navigating the complex waters of immigration law is necessary. We routinely assist our clients in having gender markers updated, as well as names changed, on immigration documents, such as a visa, employment authorization card (work permit), or a lawful permanent residency card (green card).
