LGBT Immigrants – The Current Landscape

We have come a long way since the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), and allowed us to reunite thousands of same-sex bi-national couples. While LGBT U.S. citizens and lawful permanent residents can now sponsor their same-sex couples for immigration benefits, and benefit from the changes made to assisted reproductive technology laws, there remain plenty of hurdles for LGBT individuals seeking to reside in the United States, and we hear about these on a daily basis. In this blog, we will tackle these barriers in turn, and make some policy recommendations.

Intending LGBT immigrants in detention

Thirteen U.S. states still do not recognize same-sex marriage, though this patchwork of marriage equality and non-marriage equality states will likely end once the U.S. Supreme Court issues a decision in consolidated marriage equality appeals this summer. In the meantime, LGBT partners of U.S. citizens who are detained in these non-marriage equality states often cannot marry their partners, and hence, remain detained. While this is true for even heterosexual couples, LGBT individuals are much more vulnerable in detention. DHS can resolve the detention of these individuals by asserting that LGBT individuals are part of a vulnerable population that should not be detained, and should be paroled into the U.S. to await decisions on their cases.

Transgender detainees are particularly vulnerable to abuse and violence from prison guards and other detainees. While ICE has issued some formal guidance in the past with respect to detained LGBT populations, ICE has not figured out how to handle these cases. For example, Nicoll Hernandez, a transgender woman from Guatemala, has been assaulted in an an-male facility in Florence, AZ, but thus far, ICE has refused to release her due to two prior deportations. The solution here is quite obvious: transgender detainees like Nicoll must not be detained, and should be paroled into the U.S. to await the completion of their cases. This would reduce the violence they face in detention, and afford them more due process.

Partners of LGBT asylum seekers

LGBT asylees in the U.S. cannot receive follow-to-join benefits for their partners left behind in countries with despicable LGBT human rights records, and countries where they were unable to marry. A creative solution for this may be enabling asylum seekers to gain humanitarian parole for a partner.

Partners of LGBT non-immigrants

Suppose you come to the U.S. on a H-1B visa, but your same-sex partner is overseas. Beyond a tourist visa, which may not be granted due to immigrant intent, there is no way of bringing the partner to the U.S. short of marrying the partner in a place that recognizes same-sex marriage, and then sponsoring your partner for a H-4. Here is an updated list of countries where same-sex couples can marry.

Alternatively, non-immigrants can choose to wait till they become lawful permanent residents or U.S. citizens, to sponsor their partners.

Consular Processing

Oftentimes, processing a visa abroad may cause an applicant to inadvertently out herself or himself to relatives. There also exists the very real fear that bigoted consular processing officials may out applicants to relatives in the country. While such cases are rare, they do occur. For purposes of safety, the Department of State should consider allowing intending LGBT  to process their visas in a third country.

Employment Issues

Persons who have remained closeted, who come out and claim marriage benefits such as health insurance, may be subject to employment sanctions and workplace discrimination, which remains entirely legal without a trans-inclusive Employment Non-Discrimination Act.

Immigration Fraud

For decades, LGBT individuals have tried to evade border and surveillance controls in creative ways. Those ways may come back to bite in some instances, especially where LGBT individuals have entered into false marriages to gain legal status. There are, of course, several defenses, and one should seriously consider exploring all their options with an immigration lawyer experienced in litigation and removal defense. It is critical to note here that simply marrying someone with whom you’ve a bona-fide relationship to gain an immigration benefit is not fraud. Instead, fraud is triggered when papers are filed to gain a particular immigration benefit and there is no real relationship between the petitioner and beneficiary.

Expansion of deferred action to long-time residents

President Obama’s immigration action announcement on November 20, 2014 excluded many lesbian, gay, bisexual, and transgender (LGBT) individuals who may not have the requisite family ties to qualify for the program. Advocates must continue fighting to ensure that LGBT individuals without children are included through future expansion of deferred action programs.

Have an LGBT immigration question? Contact us at info@lallegal.com.