As the world becomes a smaller place through globalization, more and more individuals are traveling abroad, for pleasure, for school, and for employment. Prior to 2013, individuals who are in gay or lesbian relationships faced significant difficulties in staying together when coming to the US either as immigrants or nonimmigrants. However, the US Supreme Court’s decision in United States v. Windsor has dramatically changed things. This article explores the issues and provides information and assistance to the gay, lesbian and transgender communities for immigration purposes.
Are same sex couples entitled to immigration benefits in the US?
Yes. Legal marriages qualify individuals for immigrant and non-immigrant benefits as a result of the Supreme Court’s ruling in United States v. Windsor. Prior to 2013, immigration law was governed by the Defense of Marriage Act. Enacted in 1996, the Defense of Marriage Act (DOMA) stated that a qualifying “marriage” for the purposes of federal law exists only between a man and a woman. Accordingly, a US citizen could not petition for a green card or any other immigration benefit for a same sex spouse. US immigration law does not refer to gender in the definition of a spouse. So once DOMA was declared unconstitutional, USCIS was able to quickly begin adjudicating both immigrant and non-immigrant visa petitions for legally married same sex couples.
Does it matter if the state where a couple lives does not recognize same sex marriages?
No. As long as a marriage took place in a state in the US where same sex marriages are legal or in a foreign country where such marriages are legal, they will be treated the same as marriages between members of the opposite sex.
Will civil unions also be treated the same for immigration purposes?
The answer to this is not yet clear. USCIS has not yet issued an announcement on this.
Will a marriage involving a transsexual individual be recognized for immigration purposes?
In recent case decided by Board of Immigration Appeals (BIA), In Re Lovo, the BIA held that a marriage between a postoperative male-to-female transsexual and a male can be the basis for benefits under section 201(b)(2)(A)(i) of the Immigration and Nationality Act. Since the state where the marriage occurred recognized the change in sex and considered the marriage valid, the BIA also found the marriage to be valid. The BIA overturned the decision of the Nebraska Service Center Director who denied the petitioner’s instant visa petition under the INA on the basis that Congress has not enacted legislation that officially recognizes a marriage where one of the parties has undergone a sex change. This decision marked a victory for the recognition of marriage of transsexual post operatives by federal laws.
What if a couple is unable to marry in a foreign national’s home country?
US citizens may file K-1 fiancé visas for their foreign partners. Upon entry to the US, the couple would need to marry in a state where same sex marriages are legal. The couple could also marry in another country where same sex marriages are legal and then the foreign national could seek to enter on a K-3 spouse visa or with an immigrant visa.
How can non-married people in a same sex partnership stay together as immigrants or non-immigrants?
In this article, we outline some of the ways unmarried same sex couples stay together. Detailed information on the visa categories mentioned below is available in other ABC’s of Immigration articles which can be found online here.
Student visas
Assuming that they otherwise qualify, the foreign national can enter the US on a student visa. They must, of course, comply with the terms of the visa, and the visa will eventually expire, meaning that the person must either leave the US or find another visa status.
Work visas
Work visas allow a person to live and work in the US for, in some cases, an indefinite period of time. The primary drawback to most common work visas is that they allow the person to live in the US only for a limited period of time. For example, the time limit on H-1B visas is six years and for L visas it is five or seven years. There are some work visas that may be renewed indefinitely. The O visa for people of extraordinary ability can be issued in three-year increments for an indefinite period of time, as long as the visa holder is doing work in the area of their extraordinary ability. The E visa, for people making an investment to start a business in the US, can be issued in five-year increments for an indefinite period. TN visas for Canadian and Mexican professionals can also be renewed without limit.
Regardless of how long a person can live and work in the US on a work visa, however, there will always remain the fact that they are not permanent residents, and could be separated from their loved one on the whim of an employer or a down turn in economic conditions.
Green cards
If the foreign national has a qualifying family member (for example, a US citizen parent or sibling) the family member can apply for their immigration. This is, however, a long process. Permanent residents can file for their adult children, but these cases involve an even longer wait.
Often, a quicker way of obtaining permanent residence is through an employer who is willing to sponsor the foreign national.
The foreign national can also apply for a green card through the diversity visa lottery if they are from a qualifying country. Given that only 50,000 visas are available each year and the fact that there are millions of applicants, this is by no means a sure way of getting a green card. Please refer the ABCs of Immigration for more information about each of these categories.
Can homosexuality be a basis for asylum?
A final way that the foreign national in a same sex partnership can remain in the US is through an asylum application. In recent years, courts have approved asylum cases submitted by homosexuals, a recognized social group, who show past persecution or well grounded fear of persecution due to sexual orientation, in the individual’s home country. Information about laws relevant to sexual orientation in most countries can be found on the International Gay and Lesbian Human Rights Commission website at http://www.iglhrc.org.
What resources are available to same sex partners or gays and lesbians with immigrations issues?
The bottom line is that couples in same sex relationships must be creative in devising workable visa strategies. If you are interested in learning more about immigration issues that affect the gay and lesbian community, visit the website of Immigration Equality at www.immigrationequality.org.