It seems hard to believe today that before 1990 United States immigration law allowed exclusion of foreign national LGBT individuals from the United States on moral grounds. On June 26, 2015, the United States Supreme Court ruled, in Obergefell v. Hodges, that same-sex couples have a right to marry throughout the entire United States and its unincorporated territories.
This decision marks a watershed moment in the movement toward LGBT equality in the United States and also positively impacts many LGBT immigrants by removing some procedural hardships for same-sex couples who apply for U.S. visas and Green Cards.
So, how are you affected if you are a gay immigrant in the wake of this landmark decision?
Gay Marriage Rights for Immigrants Before the Supreme Court’s Ruling
Since June 27, 2013 when the Supreme Court struck down sections of the Defense of Marriage Act (DOMA) in United States v. Windsor, U.S. Citizenship & Immigration Services (USCIS) has recognized immigrant same-sex couples’ eligibility for benefits. That means for the past two years, married same-sex couples have received the same immigration benefits as married opposite-sex couples that include:
Family-based visas and Green Cards
Work-based visas and Green Cards for derivative spouses
Humanitarian-based applications including asylum, deportation defense, and applications involving hardship to a United States citizen or Green Card holder’s spouse
However, before the Supreme Court ruling in Obergefell v. Hodges, same-sex couples living in states that did not recognize gay marriage had to make an often expensive and inconvenient trip out of state to get married. Only until they married in one of the few states or countries that had legalized gay marriage could that couple file for a Green Card or visa to obtain the same benefits as married opposite sex couples.
Gay Marriage Rights for Immigrants After the Supreme Court’s Ruling
Today, gay immigrants can marry anywhere in the United States, removing the inconvenience and expense of getting married away from home to receive their visa or Green Card.
Despite this progress and the Supreme Court’s recent decision, many foreign born LGBT immigrants still unfortunately face significant obstacles.
Not all LGBT immigrants qualify for benefits under current U.S. immigration laws. LGBT immigrants can only obtain a visa or Green Card if they fall within the restrictive parameters of family, employment, and humanitarian immigration options available under the current law. A 2013 report by the Williams Institute (a gender identity and sexual orientation think tank at UCLA) estimates that of the 11 million people who are in the country illegally, more than 267,000 are LGBT.
LGBT immigrants often face persecution in their home country and in the United States. Many countries view homosexuality as a crime or reason for discrimination. In desperation, many LGBT immigrants seek asylum. Unfortunately, undocumented LGBT immigrants and asylum seekers face systemic immigration problems that still need reform. Of particular concern for undocumented LGBT individuals is the heightened vulnerability for sexual assault in immigration detention centers. Also, the US asylum process has numerous challenges including stringent filing deadlines.
The attorneys at Antonini & Cohen have many years of experience representing immigrants in all areas of immigration law, including marriage petitions, asylum cases, and deportation defense for LGBT individuals. No matter your particular situation, contact us so we can advise on your options and strategy.