LGBTQ+ Immigration
Asylum—Based on Persecution for Sexual Orientation, Gender Identity, or Gender Expression
If you have been targeted for abuse or violence based on your sexual orientation, your gender identity, or your gender expression, this could form the basis for an asylum claim in the United States.
With limited exceptions, you must submit your asylum application within one year from your last entry to the United States.
Asylum is a form of humanitarian immigration. It allows you many benefits, including work authorization, as well as the ability to apply for a green card after one year.
In order to establish an LGBTQ+ asylum claim, you need to be able to show that the government was directly involved in targeting you or was unable or unwilling to protect you from your persecutor.
Persecution can take a lot of different forms, and can include severe discrimination, physical violence, forced “treatment,” and forced marriage.
Gender and kinship ties may also be factors in your persecution. You may also be able to base an asylum claim on political opinion, for example, if you were persecuted for advocating for human rights for LGBTQ+ individuals.
Finally, an asylum claim can be made if you were persecuted based on HIV+ status.
The experience of most LGBTQ+ individuals abroad does not necessarily fit into the narrow stereotypes of LGBTQ+ individuals seen on U.S. television. But the stories of our LGBTQ+ immigrant clients will sound familiar to older generations of LGBTQ+ Americans.
Most LGBTQ+ immigrants are not out – maybe not to anyone or maybe only to their closest and most trusted friends or family members. Some LGBTQ+ immigrants may have never had same-sex experiences, particularly if they hail from one of the dozens of countries that criminalize some aspect of the LGBTQ+ identity. Many LGBTQ+ immigrants may have had previous different-sex relationships and marriages, including children from those relationships. Some LGBTQ+ immigrants have “found families” that do not include any biological kin.
Thus, there may be a mismatch between what USCIS officer’s perception is and what you have lived through. It is important to have an immigration lawyer and advocate who can help you tell your story and share your unique experience. At Montavon McKillip Immigration Law, we have experience helping LGBTQ+ individuals from all regions around the world.
Family-Based LGBTQ+ Immigration
Although the United States is far from perfect in its treatment of LGBTQ+ individuals, the 2015 U.S. Supreme Court decision in Obergefell v. Hodges established nationwide legal recognition of same-sex marriage.
As a result, the United States is now a place where LGBTQ+ couples and families share the same rights provided to heterosexual couples and families.
This includes the right of U.S. citizens and lawful permanent residents to petition their same-sex or trans spouses for a green card.
U.S. citizens can also petition for their same-sex or trans fiancés to come to the U.S. to marry and then apply for green cards once they are married.
To obtain most immigration benefits for your same-sex or trans partner, a legal marriage is required. Domestic partnerships and civil unions don’t qualify you for most immigration benefits.
There are three ways for LGBTQ+ bi-national couples, where one person is a U.S. citizen or lawful permanent resident, to immigrate the non-U.S. partner based on a current or future marital relationship:
- Adjustment of status from within the U.S.
- Consular processing of immigrant visa abroad.
- Fiance K-1 visa and adjustment – only available to fiances of U.S. citizens.
Marriage-based Adjustment of Status for LGBTQ+ couples
If both spouses are in the United States, one spouse is a U.S. citizen, and the non-U.S. spouse entered lawfully, the U.S. citizen can petition for the non-citizen spouse and the non-citizen spouse can file for adjustment of status (green card) at the same time.
The U.S. citizen or LPR spouse can also petition for their spouse’s children, if the marriage occurred before the stepchild turns 18, and the stepchild is still under 21 and unmarried.
The spouses and children (including stepchildren) of U.S. citizens are considered “immediate relatives”, and thus there is no cap on the number of visas, making this route faster than many other processes.
If one spouse is a lawful permanent resident (LPR), the non-LPR spouse can only file for adjustment if they are in lawful status. Also, there is a cap on visas for the spouses of LPRs, so adjustment can’t be filed until the category is current on the Visa Bulletin.
If the non-citizen is in removal proceedings before an Immigration Judge, then more evidence of the good faith of the marriage is required.
Steps:
- Marriage U.S. citizen or LPR spouse files petition with evidence that they intend to build a life together
- Non-citizen spouse files Form I-485 application for adjustment of status (green card) with medical exam and Affidavit of Support (I-864) from U.S. citizen or LPR spouse.
- Steps 2 and 3 can be filed together for immediate relatives (spouses and children of U.S. citizens).
- Fingerprint appointment
- Work permit and advance parole (travel permit) issued
- Interview at local USCIS office Decision
Note on Conditional Residence: If married for less than 2 years when your permanent residence application is decided, USCIS will grant “conditional” residence and issue a green card with a two-year expiration date. The couple must then file the I-751 petition to remove conditions 90 days before the expiration of the conditional green card. See Family-Based Immigration: Removal of Conditions (I-751) for Marriage-Based Immigrants for more details.
Marriage-based Immigrant Visa Consular Processing for LGBTQ+ couples
If the non-U.S. spouse is not in the United States, the U.S. citizen or LPR spouse can petition for the non-U.S. spouse, and once approved, the non-U.S. spouse can apply for an immigrant visa from the U.S. Embassy or Consulate abroad. In addition, if both spouses are in the United States, but the non-U.S. spouse entered without inspection, or the non-LPR spouse of an LPR is out of status, consular processing is required, because adjustment of status from within the U.S. is not allowed. A provisional waiver may be required.
Steps:
- Marriage
- U.S. citizen or LPR spouse files petition with evidence that they intend to build a life together
- Non-citizen spouse files online DS-260 Immigration Visa application and supporting documentation, including Affidavit of Support, with Department of State’s National Visa Center
- Medical exam
- Interview at U.S. Embassy or Consulate
- Passport with visa stamp is returned.
- Non-citizen pays immigrant fee online.
- Non-citizen spouse travels to U.S.
- Once non-citizen spouse is admitted to U.S., is lawful permanent resident. Green card arrives by mail.
If your home country does not recognize same-sex marriages, it is still possible to apply for a tourist visa, enter as a tourist and marry in the United States, and then return home to consular process the immigrant visa. If you are unable to obtain a tourist visa, you can also marry in a third country that does recognize same-sex marriages, and then consular process.
Note: Conditional residence
Note: Provisional Waivers
Note on HIV+ status: HIV positive status is no longer a reason for a visa denial. However, the medical exam process may take longer due to additional testing that is required.
Fiancé(e) Visas (K-1) and Adjustment for LGBTQ+ couples
If the couple is not yet married, one partner is a U.S. citizen, and the non-U.S. partner is abroad, the U.S. citizen can petition their fiancé to enter on a fiancé visa.
The fiancé visa allows the non-U.S. partner to travel to the U.S. for the purpose of marrying within 90 days of arrival and then applying for a green card (permanent residence).
The couple must show that they have met in person at least once in the past two years, and produce evidence that their relationship is real, that they are both legally free to marry, and that they intend to marry within 90 days of entry to the United States.
Once the U.S. citizen’s fiancé visa petition is approved, the non-U.S. partner applies for the K-1 visa from U.S. Embassy or Consulate abroad.
Note: You can only marry your K-1 petitioner. You cannot enter on a K-1 visa and then marry a different person.
Steps:
- U.S. citizen partner files I-129F Petition for Fiance
- Non-U.S. partner files DS-160 Nonimmigrant Visa Application online with US Department of State, pays visa fee, schedules visa interview and medical exam, and submits required documentation to US Department of State
- Non-U.S. partner completes medical exam and appears for visa interview. Many consulates do not allow the U.S. citizen to accompany the non-U.S. partner to the visa interview.
- Once visa is issued, non-U.S. partner has 4 months to enter US
- Once non-U.S. partner has entered, the couple must marry in 90 days
- Once the couple has married, the non-U.S. spouse will file the I-485 application for adjustment of status (green card)
Note: Conditional residence
Birthright Citizenship for foreign-born children of same-sex spouses
Birthright citizenship is the right to be automatically recognized as U.S. citizens at birth. It is common knowledge that children born inside the United States are U.S. citizens at birth, regardless of their parents’ immigration status.
In contrast, children born outside the United States are granted birthright citizenship if at least one parent is a U.S. citizen at the time of birth, and that parent meets specific residency requirements.
The U.S. Department of State and USCIS recently began to recognize the birthright citizenship of foreign-born children of same-sex spouses, where the biological parent was not the U.S. citizen spouse parent.
This means that a child born abroad to a married couple, where one parent is a U.S. citizen, is considered a U.S. citizen at birth, as long as there is a biological relationship (genetic or gestational) to one of the two parents. The parents can now apply to the U.S. Department of State for a Consular Report of Birth Abroad and U.S. passport for their child, and can apply to USCIS for a Certificate of Citizenship for their child.
Employment-Based and Non-Immigrant Visas for Dual Foreign National LGBTQ+ Couples
If you are a dual foreign national married couple, where neither one is a citizen of the United States, you can still keep your family together while you live, work or invest in the United States temporarily.
The spouse and children of foreign nationals granted long-term nonimmigrant visas are eligible for derivative visas so that the entire family can move to the United States temporarily.
A legal marriage is required for a derivative spouse visa; domestic partnerships and civil unions do not qualify.
One of the most important requirements for most nonimmigrant visas is to be able to prove that you do not intend to immigrate to the United States permanently. The same is true for derivative visas.
Some derivative visas allow for work authorization.
If there is no legal marital relationship, B-2 visas are available for “cohabitating partners” of certain long-term nonimmigrant visasholders. However, B-2 visa holders cannot work in the United States.
Humanitarian Visa Options for LGBTQ+ Immigrants
Besides asylum, there are several humanitarian visa options for LGBTQ+ individual who have experienced harm based on their sexual orientation, gender identity, or gender expression. For example, the U visa for victims of crime and Special Immigrant Juvenile status for abused or abandoned children are just two options that may apply to some LGBTQ+ immigrants. See Humanitarian Immigration for more details.
