Gay, Lesbian, Bisexual and Transgender Immigrants
Green Cards (Permanent Residency) for Gay & Lesbian Spouses
In late June 2013, the US Supreme Court held that the Defense of Marriage Act (DOMA) was unconstitutional in United States v. Windsor
. DOMA only recognized marriages for purposes of federal benefits that were heterosexual. As a result of this decision, for the first time ever, Lesbian and Gay marriages can now serve as a basis to sponsor a spouse for a green card or permanent residency under federal U.S. immigration law. But this is not the only area of immigration law that is positively affected by this change. Possible visas available now include:
* gay marriage-based immigrant visa and green card cases
* fiance visa petitions
* VAWA self-petitions as abused spouse of a same-sex USC or LPR spouse
* Following to join petitions for spouses joining an immigrant who has just received their green card through employment or through another family member.
* Derivative beneficiaries of same-sex visa holders will also have more options (H-4 for spouse of an H-1B visa holder, for example).
* I-601 10 year bar, misrepresentation, and criminal waivers of inadmissability that need a qualifying spouse as a relative to apply;
* Visas for step-children created by gay marriages, and more . . .
CIS is currently reopening those denied previously when DOMA was still in effect.
There are a few catches to the news:
* CIS will consider the marriage potentially valid if it was valid in the state where it took place (so if you get married in one of the 13 states that legally allow gay marriage, then that’s the first step). However, CIS has not made clear whether the law of the state where the couple actually lives (if not married in that state) could dictate whether the marriage, itself, is legally valid. For example, if your home state bans gay marriage but you marry in Massachusetts, will CIS uphold your marriage? So far, CIS has approved cases with exactly that scenario but there is no official policy overturning a state’s long term deference to a home state’s jurisdiction over family law matters.
* Gay marriages are under scrutiny by CIS for possibility of marriage fraud, which will look at the couple’s marriage and immigration history like CIS would of a heterosexual couple. Some marriages may seem less legitimate or worse, fraudulent, if they took place in the past and were between two heterosexuals, one of which is now in a gay marriage and is trying to file for immigration status based on the new marriage with USCIS.
* Potential past misrepresentation could bar relief. Applicants need to tread lightly when applying for any immigration benefit based on their same-sex marriage if the relationship was never disclosed previously upon entries into the US and applications for nonimmigrant visas. To obtain entry into the US when a partner was on an H-1b or other temporary non-immigrant visa, the partner may have lied about their relationship to the other they were traveling with or who they used to sign the affidavit of support for issuance of the visa. Consult a competent immigration attorney about your options if you think you lied or were obligated to disclose a relationship that you did not to CIS or border patrol.
* Transgendered marriages or fiance visas. A couple can now file a marriage-based petition even if the transgendered spouse has not gone through the entire medical procedure to change sex. Under Windsor, this couple would likely be treated as same-sex for purposes of filing unless the birth documents have been changed to reflect a different sex despite the lack of operation.
* Effect on Civil Unions and Domestic Partnerships. At this point, it is unknown whether CIS will consider civil unions and domestic partnerships as the same as “marriage” for purposes of awarding immigration benefits. These couples may have to officially marry under current state laws to be married for immigration purposes.
* It May be Unsafe for a LGBT Immigrant to Process their Marriage Case at a Consulate Abroad. If the Immigrant entered illegally or is married to a green card holder and did not stay in valid status and their spouse is nowhere near becoming a US citizen, the immigrant may be forced to interview for their green card at a consulate abroad instead of with USCIS in the U.S. This could be dangerous for many who come from countries where LGBT individuals are flogged or killed or imprisoned. Before going forward with any case, consult a competent immigration attorney about the risks of travel and to see if there is an option to avoid traveling to your home country consulate (called third country processing) to protect your safety.
U Visas for Victims of Violent Crime or Partner-on-Partner Violence
The U Visa was the first nonimmigrant visa to allow immigration benefits to an immigrant who was a survivor of domestic violence perpetrated by their gay or lesbian partner. The “immigration”, “marital status”, or “relationship” status to the person abused or assaulted is irrelevant for purposes of the U visa. That is why the U visa is also utilized for stranger rapes, when the perpetrator’s identity cannot be ascertained at all. No. The U visa program is unique, in that the abuser or perpetrator of the crime can be undocumented or illegally in the U.S. The immigration status of the abuser or person who committed the crime against you does not matter for purposes of you obtaining a U visa. Example
: Your boyfriend or girlfriend attacks you, you call the police. Immigration will not care that you are not married and that your boyfriend or girlfriend is here illegally.
The U visa is for a victim of a violent crime who cooperates with law enforcement (such as police or district attorney) in a potential investigation or prosecution of the criminal activity. The U Visa was created to encourage victims to come forward and report crimes to the police. If the U visa is granted after the immigrant also demonstrates that s/he has suffered “substantial harm”, the visa provides work authorization and valid status for the immigrant for four years. After three years in U status, the immigrant may be eligible to apply for a green card based on their ongoing cooperation with law enforcement and if it is in the public interest to grant this benefit.
The U visa has been used to provide status to young men assaulted outside of gay clubs, beaten up by gangs, and others conducting hate-related violence based on sexual orientation as well as stranger rape and domestic violence from domestic partners. The U Visa also has generous waiver that can waive illegal entry, the permanent bar, the 3 and 10 year bars for unlawful presence, misrepresentation, a false claim to US citizenship status, and much more, allowing options for those who may not otherwise have a qualifying relative to obtain a green card or status or protection any other way.
If the “Attorney General considers it necessary to avoid extreme hardship to the spouse, child, or in the case of an alien child, the parent of the noncitizen alien with the U visa, the Attorney General may also grant status to the noncitizen’s family members if the investigation or prosecution would be harmed without their presence in the U.S.
What kind of crime qualifies for the U Visa?
The criminal activity must involve one or more of the following or any similar activity in violation of Federal, State, or local criminal law:
rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.
Political Asylum for Gay, Lesbian, Bisexual Transgender Individuals Afraid to Go Home
Political asylum is a special immigration form of relief that allows a person who fears persecution if returned to their home country based on past persecution or credible fear of future persecution because of the person’s gender, religion, ethnicity, membership in a particular social group, or race to gain lawful permanent residency in the U.S. Being identified by others as a member of a particular social group in one’s home country includes those with “transgender identity” and those who are grouped as being identifiable with a “sexual orientation.” Members of the LGBT community faces not only intolerance but threats to their safety and those who harbor them including violence and potential death in many countries across the world and it’s getting worse in some countries.
There are difficult aspects to many LGBT asylum cases. If the immigrant has not been “out”, how can this person be identified as a member of a particular social group being persecuted? Transgender individuals are usually easier to spot because there is some physical manifestation the change especially if taking hormones and as the body changes. Not so easy to identify many gays or lesbians. Is there a safer part of the country or an alternate country that the immigrant can relocate to if must return home? Was any of the past persecution ever reported to the police and if not, because the immigrant wasn’t out, how can one show that the police have turned a blind eye or are unwilling to protect the immigrant? These are just some issues that come up with these types of asylum claims.
It’s important to speak with a competent immigration attorney about this possibility if it could apply to you and do so soon because . . .
* Asylum claims must usually be filed within 1 year of entry into the U.S
. It is possible to file asylum claims late but many of these cases are sent to removal proceedings for the court to adjudicate the late filing, chances of approval for which are usually much less than if the case just stayed at USCIS.
* Changed circumstances in your home country
could bar you from a successful asylum claim if you wait too long to file.