In recent years, the rights of LGBTQ immigrants in the United States have changed significantly. A progressive cultural environment and multiple lawsuits have helped balance the treatment of same-sex marriages in the U.S. immigration system and protect the fundamental rights that many non-LGBTQ people take for granted.

While the gay, lesbian, bisexual and transgender communities continue to be persecuted in much of the world, LGBTQ rights are catching up in the US. The goal is for people who identify as LGBTQ to be treated just like any other person. This does not mean that individuals who identify as LGBTQ no longer face particular challenges when it comes to immigration.

LGBTQ Immigrant Rights History

Not so long ago there were no rights for LGBTQ immigrants in the US. Indeed, being gay was treated as a ground of inadmissibility. If you were known to be gay, lesbian, bisexual, or transgender, you would most likely not be accepted into the United States as an immigrant. In fact, the Immigration and Citizenship Act of 1951 viewed LGBTQ as a "mental defect". Later the language changed to be called "Deviation". Immigration policy still viewed it as a medical reason to disqualify immigrants in the United States.

Refugee Act 1980 fuels change for persecuted LGBTQ people

The Carter Administration passed the Refugee Act of 1980. Thanks to that law, things began to change. The way this law defined “refugee” opened the door for LGBTQ people to apply for protection status. This law defined a refugee as “someone outside their home country who is unable or unwilling to avail themselves of the protection of that country because of persecution or a reasonable fear of persecution based on race, religion, nationality or social group membership to take. or political opinion. "Thereafter, many Supreme Court cases have found that LGBTQ is a 'membership in a social group' that grants asylum to people on that basis.

RECOMMENDED: Overview of the asylum status

Over time, Americans and their leaders have become more open to social issues. Indeed, President Obama said his views on gay marriage had "evolved". The courts followed. The rights of LGBTQ immigrants have benefited from it.

The top three rulings by the Supreme Court in favor of the rights of LGBTQ immigrants:

  • USA vs. Windsor (2013): Many states had legalized same-sex marriage by this time. The Supreme Court ruled in a 5-4 vote that it was unconstitutional not to allow same-sex couples to marry. The 5th amendment to the constitution calls for equal protection for all Americans. The court also stated that marriage as the union of men and women was unconstitutional. This definition of marriage was included in the Defense of Marriage Act 1996.
  • Obergefell v Hodges (2015): In another 5-4 vote, the Supreme Court said the right to marry is fundamental. It is also said that the 14th Amendment protects freedoms such as the right to marry. This landmark case made same-sex marriage legal in all US states and territories.
  • Bostock v Clayton County (2020): This marks the most recent win for LGBTQ rights. The question was, can an employer fire someone if they identify as LGBTQ. In a 6-3 ruling, the court said you cannot discriminate against LGBTQ people at work for this reason. It is also said that LGBTQ discrimination is based on gender, which is unconstitutional. Many states had no protection for LGBTQ people at work prior to this decision. Since it is a decision of the Supreme Court, it applies to all states.

Immigration for same-sex fiancee

Same-sex marriages are now legal in all states, making it easier for LGBTQ couples to use the fiancé visa process. The fiancé visa, officially known as the K-1 visa, is used by a foreign fiancé to enter the United States to marry a US citizen.

It's perfect for those who couldn't get married in their country of origin. In the US, the alien can adjust the status to obtain permanent residence. Ielts Science has guaranteed approval of applications for all of these processes.

Before the Obergefell ruling, there was an additional burden on same-sex couples. U.S. Citizen K-1's petitioner had to prove that the marriage to the foreign fiancé would take place in a state where the marriage was legal. As a result, a lawyer was often required. It was expensive to hire a lawyer to prove that the marriage was going to take place in one jurisdiction and then actually have the marriage in an alternative state. Based on the ruling by the Supreme Court, the Constitution now requires all states to approve same-sex marriages. Same-sex marriages are therefore treated the same as same-sex marriages with no additional paperwork or hassle.

The fiancee process begins with the filing of Form I-129F, Petition for Alien Fiancé by US citizens. As long as standard immigration requirements are met, USCIS allows the US citizen's fiancé to enter the US for the purpose of marriage. Read more about immigrating through the fiance visa and getting a green card in our free downloadable eBook Life After K-1 Visa.

RECOMMENDED: Overview of the K-1 Visa Process

LGBTQ immigration rights for married couples

LGBTQ couples who are already married can use the US immigration system just like any other married couple of different sexes. A US citizen or permanent resident can apply to have their LGBTQ spouse come to the US on an immigrant visa (green card).

There is one important difference, however: only a relationship that is legally considered to be marriage in the jurisdiction in which it took place establishes spouse eligibility for immigration purposes. In other words, the marriage must take place in one of the countries where same-sex marriage is legal. For example, if the marriage took place in Saudi Arabia, where same-sex marriages are clearly prohibited by law, then the marriage is not considered legal. In this example, the couple would have to use the fiancé visa procedure to get married in the United States or to get married in another country where same-sex marriage is legal.

The process begins with the submission of Form I-130, Petition for Alien Relative, by the U.S. citizen or permanent resident. As long as the immigration requirements are met, USCIS allows the spouse to enter the United States as a green card holder.

RECOMMENDED: Earn permanent residence through marriage

Children of same sex couples

Immigrant rights extend to children of LGBTQ couples. A US citizen or permanent resident can request that a same-sex spouse immigrate to the US. However, every child of the foreigner can also be entitled to immigrate.

For example, a gay US citizen meets and marries a Dutch citizen. This Dutch national has two young children who have to stay with him. The US citizen applies for an immigrant visa (CR1 or IR1) from their spouse and an immigrant visa (IR2 or CR2) from their stepchildren. In other categories, stepchildren acquired through same-sex marriage may qualify as beneficiaries (F2A) or for derivative status (F3, F4, E1-E4, or DV). As with a same-sex marriage, the same-sex marriage must have taken place before the child turned 18.

LGBTQ immigration rights for refugees and asylum seekers

LGBTQ immigration through refugee and asylum status is also receiving increasing attention as a viable means of immigration to the United States. Refugee or asylum status can be granted to a person seeking protection because he or she has been persecuted or feared of being persecuted on the basis of race, religion, nationality, membership of a certain social group or political opinion.

There is not much data for this particular group, but the collection started in 1997. At that time only 100 people in this category had applied for asylum or refugee status. According to NBC News, around 4,400 people applied for asylum in the United States between 2007 and 2017 because of their LGBTQ status. Many applicants come from places where same-sex marriages or homosexuality itself are illegal. Same-sex marriages are illegal in all but 29 countries. Many countries in Africa, the Middle East, and the Caribbean have laws that make LGBTQ a crime.

Anti-LGBTQ law card(Click on the image to open an interactive map.)

What is the LGTBQ immigration coming up with?

In recent years, some LGBTQ asylum seekers have had problems because they were not married at the time of immigration. If a couple is not married, each application is individual, even if they were in a long-term relationship. Therefore, each applicant would have to qualify separately. LGBTQ couples can go to different detention centers. Some transgender women in detention centers have reported abuse and discrimination.

Some of these protective measures could be omitted. The Trump administration is trying to change the rules for deciding on asylum applications. Human Rights Watch believes that the “Asylum and Restraint Procedures; Credible Fear and Adequate Anxiety Test "would negatively affect LGBTQ applicants.

America's Declaration of Independence says freedom is a right. This includes loving who you love and freely expressing your identity. And while things are not perfect in the US, for many LGBTQ people America is really the land of the free.


About Ielts Science

Ielts Science provides a simple, inexpensive, and step-by-step guide to USCIS immigration applications. Individuals, lawyers, and nonprofits use the service on their desktop or mobile device to accurately prepare immigration forms and avoid costly delays. Ielts Science allows users to try the service for free and offer a 100% money-back guarantee that USCIS will approve the application or petition. We support the K-1 Fiance Petition (Form I-129F), Spouse Petition (Form I-130), Adaptation of Status Request (Form I-485), and several other commonly used USCIS forms.

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