Over the last several years, LGBT immigration rights in the United States have changed significantly. A progressive cultural environment and several court cases have helped to equalize treatment of same-sex marriage in the U.S. immigration system.
While the gay, lesbian, bisexual, and transgender communities continue to be persecuted throughout much of the world, LGBT immigration rights have blossomed in the United States.
U.S. LGBT Immigration History
Just a few years ago, LGBT immigration rights were non-existent. In fact, being gay was treated as a ground of inadmissibility. If you were known to be gay, lesbian, bisexual or transgender, you most likely would not be admitted to the United States as an immigrant. However, Congress removed this rule from the Immigration and Nationality Act in 1990. Two years later, the Supreme Court issued an historic ruling in U.S. v. Windsor, which struck down the section of the Defense of Marriage Act (DOMA) that defined marriage as only a legal union between a man and a woman.
Most recently, the U.S. Supreme Court ruled in favor of same-sex marriage, making it “legal” to marry in any state. Specifically, in the case of Obergefell v. Hodges, the Supreme Court found that the 14th Amendment to the U.S. Constitution requires states to license same-sex marriages.
These momentous legal decisions have removed major roadblocks for the LGBT community, paving the way for equal legal rights in the United States and receiving equal immigration benefits. Most importantly, same-sex spouses of U.S. citizens and permanent residents, along with their minor children, are now eligible for the same immigration benefits as opposite-sex spouses.
Immigration for Same-Sex Fiancés
Same-sex marriage in now legal in every U.S. state, making it easy for LGBT couples to utilize the fiancé visa process. The fiancé visa, also known as a K-1 visa, is used by a U.S. citizen to bring a foreign-born fiancé to the United States for the purpose of getting married.
Prior to the Obergefell ruling, there was an additional burden on same-sex couples. The U.S. citizen K-1 petitioner was required to prove that the marriage to the foreign fiancé would take place in a state where marriage was legal. As a result, an attorney was often necessary for LGBT immigration. It was expense to higher an attorney, prove the marriage would take place is a legal jurisdiction and then actually have the marriage in an alternative state. Now, based on the Supreme Court ruling, the Constitution requires all states to license same-sex marriages. Thus, same-sex marriages are be treated identically to opposite-sex marriages with no additional paperwork or hassles.
The fiancé process begins with the U.S. citizen filing Form I-129F, Petition for Alien Fiancé. As long as the standard immigration requirements are met, USCIS will enable the U.S. citizen’s fiancé to enter the United States for the purpose of marriage. Read more about immigrating through the fiancé visa process and obtaining a green card in our free downloadable ebook, Life After K-1 Visa.
LGBT Immigration Rights for Previously Married Couples
LGBT couples that are already married may also utilize the U.S. immigration system as would any other opposite-sex married couple. A U.S. citizen or permanent resident may petition to have his or her LGBT spouse come to the United States and receive a green card.
But there is an important distinction — Only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for immigration purposes. For example, if the marriage took place in Saudi Arabia, where same-sex marriages are clearly forbidden by law, the marriage will not be considered legal. In this situation, the couple would need to utilize the fiancé visa process to get married in the U.S. or get married in another country where same-sex marriage is legal.
The process begins with the U.S. citizen or permanent resident filing Form I-130, Petition for Alien Relative. As long as the immigration requirements are met, USCIS will enable the spouse to enter the United States and obtain a green card.
Children of Same-Sex Couples
LGBT immigration rights extend to the children of LGBT couples. The children of foreign national spouses can be considered step children of the U.S. citizen and can obtain a green card or other immigration benefits. For example, a U.S. citizen can petition to bring a spouse to the United States for a green card (IR1 visa) and also petition his or her step children for the same (IR2 visa). In other categories, step children acquired through same-sex marriage can qualify as beneficiaries (F2A) or for derivative status (F3, F4, E1-E4, or DV). As with an opposite-sex marriage, the same-sex marriage must have taken place before the child turned 18.
LGBT Refugees and Asylees
LGBT immigration through refugee and asylum status is also getting more attention as a viable means to immigrate to the United States. Refugee or asylum status may be granted to an individual seeking protection because they have suffered persecution or fear that they will suffer persecution due to race, religion, nationality, membership in a particular social group or political opinion. In many Middle Eastern and African countries, being gay is illegal – and often punishable by imprisonment or death. Many asylees also come from South and Central American countries.
Very little data is available on current immigration due to persecution of the LGBT community. Naturally, those that feared persecution due to sexual orientation are less likely to disclose this information when arriving in a new community. While they are demonized in many countries, this persecution serves as an advantage for many hopeful LGBT immigrants.
For additional information on applying for benefits, read our Asylum/Refugee Overview.
NonImmigrant Visas (NIVs)
The rights of same-sex couples extend beyond immigrant visas (green cards) to nonimmigrant visas for other purposes. Therefore, the same-sex spouse of a nonimmigrant visa holder, including work, study, or international exchange, will be eligible for a derivative visa. For example, the same-sex spouse of an H1B visa holder will also be eligible to accompany his or her spouse in the United States with an H4 visa.
Reduced Residency for U.S. Citizenship
Generally, naturalization for U.S. citizenship requires five years of residence in the United States following admission as a lawful permanent resident. However, immigration law has special provisions for permanent residents married to a U.S. citizen. The permanent resident becomes eligible for naturalization after just three years if the permanent resident has been married to the U.S. citizen for the previous three years and the spouse has been a U.S. citizen for the entire three years. This reduced residency is also available for permanent residents in same-sex marriages. For more information, read Citizenship Requirements for a 3-Year Married Permanent Resident. To apply for naturalization, lawful permanent residents use Form N-400, Application for Naturalization.
LGBT immigration in America has come a long way in a relatively short period. Political and cultural change has come together to level the playing field for LGBT couples navigating the U.S. immigration system. The same-sex spouse of a visa applicant coming to the United States for any purpose – including permanent residency, work, study or other reasons – will be eligible for a derivative visa. Likewise, step children acquired through same-sex marriages will be treated equally, allowing them to qualify as beneficiaries or for derivative status.
CitizenPath provides simple, affordable, step-by-step guidance through USCIS immigration applications. Individuals, attorneys and non-profits use the service on desktop or mobile device to prepare immigration forms accurately, avoiding costly delays. CitizenPath allows users to try the service for free and provides a 100% money-back guarantee that USCIS will accept the application or petition. We provide support for the Petition to Help a Relative Obtain a Green Card (Form I-130), Citizenship Application (Form N-400), and several other commonly used USCIS forms.