Sexual Orientation and Immigration
The Basics
By The Lesbian and Gay Immigration Rights Task Force and Lambda Legal
Published 03/03/05
Download this publication as a PDF.
Visa Basics
Gaining entry into the U.S. is a two-step process.
First, you must apply for a visa, a stamp in your passport that allows you to board a plane or other transportation to the U.S.
Second, a U.S. immigration official must admit you into the U.S. at the airport or at a border. A visa does not guarantee that you will be allowed to enter the U.S. -- that permission is granted by U.S. immigration officials.
Before visiting or immigrating to the United States you will need to apply for a visa from the U.S. consulate in your country. You will also need a passport.
Citizens of certain countries (mostly in Western Europe) who want to visit the U.S. for a short period of time do not need a visa. Check with the U.S. consulate in your country to see if your country is a visa waiver country. Or see State Department Webpage
There are two categories of visas -- immigrant and non-immigrant:
A non-immigrant visa allows you to stay in the U.S. for a limited period of time and for a specific reason (for example to attend school or to be a tourist).
an immigrant visa -- also known as a "green card" -- allows you to stay in the U.S. permanently (subject to certain conditions.)
The State Department is the U.S. government agency responsible for administering laws and regulations for people who apply for visas from outside the U.S.
The Department of Homeland Security (DHS) is the U.S. government agency responsible for administering laws and regulations regarding non-U.S. citizens entering and remaining in the U.S.
You cannot legally be denied entry into the United States based on your sexual orientation.
Immigration officials are not legally permitted to ask about your sexual orientation.
If an official asks about your sexual orientation, you can politely tell him or her that sexual orientation is not a ground for exclusion from the U.S.
If you tell an Immigration Official that you are in a long-term relationship with an American, you could be denied entry into the U.S. Any time a person seeks to enter the U.S. on a non-immigrant visa, you must prove to the Immigration Official that your intent is truly to remain in the U.S. temporarily. The Immigration Official begins with a presumption that you plan to stay here permanently and you must prove to the Official that this is not the case.
If questions regarding your sexual orientation were part of your interview, and you strongly believe that your sexual orientation alone was the ground for denial of a visa, contact a lawyer that specializes in immigration law. See our resource section.
HIV & Immigration
United States immigration law prohibits people with HIV from entering the country, although some waivers of the HIV bar are available. For more information see “HIV & Immigration: The Basics.” To obtain a free copy of this publication contact Lambda Legal or LGIRTF.
Immigrant Visas
To immigrate permanently to the United States, you must be sponsored by certain family members or an employer. You can also obtain legal permanent resident status through what is known as the “green card” lottery by being selected in a random drawing for a visa. Asylees and refugees are also able to apply for legal permanent residence.
Most categories of visa are available in limited numbers every year.
Family-Based Immigration
Because same-sex relationships aren’t recognized by the U.S. federal government your partner cannot sponsor you for permanent resident status based on your relationship.
Even if you marry your same sex partner in a country that recognizes same sex marriages (for example, certain provinces in Canada), the U.S. government will not recognize your marriage for immigration purposes.
Family based immigration is very complicated and is based on a “preference” system.
Generally, this application is also a two step process. First, your relative submits a petition on your behalf (an I-130) that establishes their relationship with you. You are then assigned a “priority date” and depending on what your “preference” category is, you have to wait, sometimes for many years, before you can take the second step in the application process and apply for a “green card.”
Immediate relatives of U.S. citizens, defined as opposite sex spouses, parents or unmarried children (under the age of 21) of a U.S. citizen can file for legal permanent residence at the same time they file the petition (I-130). Everyone else must wait for their priority date based on their preference categories.
For a list of preference categories and priority dates visit: http://uscis.gov/graphics/ services/imm_visas.htm
Basically, in addition to the immediate relatives listed above, a family member can petition for an immigrant visa on your behalf (apply for a “green card”) if you are the adult son or daughter (over the age of 21) of a U.S. citizen. The waiting period is longer if you are married. A U.S. citizen can also petition for his or her brother or sister, but the waiting period is very long.
A legal permanent resident can petition for her or his opposite sex spouse, minor children (under the age of 21) or unmarried adult son or daughter (over the age of 21.) A legal permanent resident cannot petition for a married adult son or daughter or for a brother or sister.
The rules which govern whether you can apply for the “green card” from within the U.S. (known as “adjustment of status”) or whether you must apply from within your home country (known as “consular processing”) are very complicated and you should consult with an experienced immigration attorney before applying for legal permanent residence.
Having an approved I-130 petition does not give you legal status in the U.S.
If you have been in the U.S. without lawful status for more than 6 months and you leave the U.S., you will be barred from re-entry for 3 years. If you have been in the U.S. without lawful status for more than 1 year, and you leave the U.S., you will be barred from re-entry for 10 years. So, even if you have an approved I-130 petition, it may not be possible for you to obtain legal permanent residence.
In addition to establishing the family relationship, applicants for legal permanent residence must prove that they are “not likely to become a public charge” and must demonstrate that their sponsor can support them financially.
You will also need to have a routine medical examination. This exam includes a chest x-ray and a blood test that will reveal certain communicable diseases such as tuberculosis and HIV.
Employment-Based Immigration
Employment-based immigration visas are divided into five “preferences.” Some of the preferences are further divided by categories.
All categories of employment-based immigration require a U.S. employer to sponsor you unless you are considered a person of “extraordinary ability,” a “special immigrant,” or an “investor.”
Eligibility for all of the “preferences” is contingent on an employer’s ability to show that there are no U.S. workers available to fill the particular position. (The intent of this policy is to protect U.S. workers by ensuring that U.S. citizens have maximum access to the job market.)
To sponsor an individual for a green card an employer needs to file an application for “labor certification” with the Department of Labor that demonstrates that there are no U.S. workers able, willing and qualified to fill the position being offered.
The employer filing the petition must also be able to show that she or he has the financial ability to pay the offered wage and that the employee meets the minimum requirements to perform the job satisfactorily.
Once the labor certification is approved, it is submitted to the Citizenship and Immigration Service (CIS).
After obtaining the approval from the BCIS, you must file an application to either “adjust” your status if you are already in the U.S. or obtain an immigrant visa if abroad.
Once this application is approved, you will become a permanent resident of the U.S. and may start working.
The Green Card Lottery
The green card lottery allows qualified entrants the chance to be selected randomly for a green card.
You must belong to a low-admission country to enter the green card lottery. A country is deemed low-admission if less than 50,000 of its citizens immigrate to the U.S.
You don’t need to be present in the United States to apply for the green card lottery.
To be eligible for the green card lottery, you must hold a high school diploma or equivalent, or within five years of your application date have worked at least two years in a job requiring two years of training or experience.
Generally people who are in the U.S. without lawful status will not be able to obtain legal permanent residence through the lottery.
Beginning with the 2005 lottery (for which registration is November 1, 2003 through December 30, 2003), the Department of State is using a computerized system for entrants. This means that there is a substantial risk for undocumented immigrants to submit lottery entries. For more information visit: www.lgirtf.org/dvlottery.html
Same-Sex Couples and Immigration
U.S. immigration law does not recognize same-sex relationships, and as a result, the relationship does not help same-sex partners qualify for immigration benefits. You will not be able to sponsor your partner for immigration or be sponsored by your partner.
If you are a U.S. citizen or permanent resident, your partner must qualify for permanent residence through another category on his or her own.
If you marry or intend to marry a person of the opposite sex you will be eligible to apply for legal residence in the U.S. A husband or wife that is a U.S. citizen can submit a petition to sponsor his or her spouse for immigration.
If a lesbian or gay immigrant enters into a marriage with a person of the opposite sex in order to remain in the U.S., he or she risks deportation and the possibility of being barred from returning to the U.S. In addition, the person he or she married may be fined and sent to jail for committing fraud.
People who are contemplating an “immigration marriage” should also be aware that when a spouse submits a “green card” application for an immigrant spouse to whom he or she has been married for fewer than two years, the immigrant is only eligible for a “conditional green card.” The couple must to return to CIS two years after the “conditional green card” is granted and demonstrate that the marriage is still viable. Couples must prove to CIS that they live together, own property together, and share their finances. CIS can call employers and do home visits to investigate the validity of the marriage.
It’s not fair that same-sex couples have far fewer rights than straight couples. Same-sex couples can’t legally marry in the U.S., and U.S. citizens can’t sponsor their same-sex partners for immigration. Many people are working to change the law.
The Permanent Partners Immigration Act, a bill before the U.S. Congress, would give same-sex partners the same immigration rights as straight married couples. If passed, U.S. citizens and lawful permanent residents could sponsor their partners for immigration. For more information visit: www.lgirtf.org/ppia.html
Applying for Asylum
If you fear persecution in your home country because of your sexual orientation, you may be eligible for asylum in the U.S.
To claim asylum you must be physically present in the United States or at an airport or border crossing. Many applicants who seek asylum at an airport or border crossing are detained (kept in prison) while their application is pending.
Asylum Basics
Contact an immigration attorney with expertise in sexual orientation and asylum claims to assist you.
All asylum applications are completely confidential. Your name and the nature of your asylum claim will not be disclosed to the government of your home country.
Since 1994, it has been possible for gays and lesbians to apply for asylum as “members of a particular social group,” if they have suffered past persecution or have a well founded fear of future persecution in their country on account of their sexual orientation.
You must prove that you are unable or unwilling to return to your home country due to past persecution or well-founded fears of future persecution based on your sexual orientation. You can claim asylum on more than one ground at the same time -- for example, fear of persecution because you are gay and HIV positive.
You must be prepared to show that in your home country gay people are targeted as a group and subject to persecution. Persecution is different from discrimination. To find out more about what is considered persecution, consult an immigration lawyer familiar with sexual orientation issues. See the resource listing at the end of this publication.
You must file an application for asylum within one year of your entry into the U.S. or show an extraordinary reason for missing the deadline. The application is considered filed the date it is received by CIS.
Undocumented Applicants
If you are undocumented you can still apply for asylum. However, information that you provide on the asylum application will be used as evidence to begin removal (formerly called "deportation") proceedings, or establish that you are deportable if your application for asylum is denied.
If you are granted asylum, you can apply for legal permanent residence one year after your asylum approval.
Contact an immigration attorney with experience handling asylum cases to assist you.
Becoming a U.S. Citizen
Be sure to speak with an immigration attorney before applying for citizenship. You will want to talk about any length of time you were outside the U.S. while a permanent resident, whether you have a criminal record, and how you received your “green card,” or any other possible issues.
File an application for naturalization (Form N-400) with the Immigration Service with photos, a copy of your “green card” and a filing fee.
After you submit your application, a naturalization interview will be scheduled with a BCIS officer.
You should begin collecting the following documents for your interview:
- Five years of income taxes;
- Your birth certificate;
- Any documents showing a change in status after you became a permanent resident (example: marriage or divorce papers) and
Most applicants (unless they are elderly and have been in the U.S. for a long time) must pass an English test and a civics test to naturalize. A waiver is available for these tests if your doctor can certify that you have a disability that prevents you from learning the information on the tests.
If you are approved to become a U.S. citizen (naturalization), you will be required to attend a swearing-in ceremony to complete the process. If you have obtained a medical waiver for the English and civics tests, it is important that your doctor state that you are competent to understand the oath of allegiance to the United States.
Once you are a U.S. citizen, it can be much easier to sponsor family (parents, opposite sex spouse, children) to get their green cards.
Resources
East Coast
Lambda Legal
120 Wall Street, Suite 1500
New York, NY 10005
Phone: 212.809.8585
Email: legalhelpdesk@lambdalegal.org
During the Help Desk Hours, Lambda Legal staff respond directly to members of our community who are seeking legal information and assistance with sexual orientation and HIV/AIDS-related discrimination.
Immigration Equality
350 West 31st Street, Suite 505
New York, NY 10001
Phone: 212.714.2904
Email: info@immigrationequality.org
Address the widespread discriminatory impact of immigration laws on the lives of lesbian, gay, bisexual, transgender and HIV positive individuals through education outreach, advocacy and the maintenance of a nationwide resource and support network. Provides advice and technical assistance to LGBT and HIV positive immigrants and their attorneys via email and telephone. Operates pro bono asylum program for LGBT and HIV positive asylum seekers. For more information visit: immigrationequality.org/
Center for Lesbian & Gay Law and Public Policy
1211 Chestnut St., suite 605
Philadelphia, PA 19107
Phone: 215.731.1447
Email: c4crinfo@center4civilrights.org
Provide legal advice to LGBT communities in Pennsylvania. Direct representation for low-income LGBT clients. For more information visit: www.center4civilrights.org
Gay Men's Health Crisis
119 West 24 Street
New York, NY 10011
(212) 367-1000
Provides direct representation to HIV positive residents of New York City in immigration matters. For more information visit: www.gmhc.org
Greater Boston Legal Services
197 Friend Street
Boston, MA 02114
Phone: 617.371.1270
Immigration clinic that offers free and lost cost legal services. For more information visit: www.gbls.org
HIV Law Project
161 William St.
New York, NY 10038
(212) 577-3001
Provides direct representation to low-income, HIV positive individuals who live in the Bronx, Manhattan, or who are homeless, in immigration matters. For more information visit: www.hivlawproject.org
Safe Horizon Immigrant Legal Services Project
74-09 37th Avenue, Room 308
Jackson Heights, NY
Phone: 718.899.1233 ext. 129
Email: info@safehorizon.org
Provide free and low cost legal services to immigrants. For more information visit: www.safehorizon.org
South
Lambda Legal
Southern Regional Office
1447 Peachtree St., N.E., suite 1004
Atlanta, GA 30309-3027
Phone: 404.897.1880
Email: legalhelpdesk@lambdalegal.org
During the Help Desk Hours, Lambda Legal staff respond directly to members of our community who are seeking legal information and assistance with sexual orientation and HIV/AIDS-related discrimination.
Florida Immigrant Advocacy Center
3000 Biscayne Blvd., suite 400
Miami, FL 33137
Phone: 305.573.1106
Provides free direct legal services. For more information visit: www.fiacfla.org
Lesbian & Gay Immigration Rights Task Force/South Florida
P.O. Box 398903
Miami Beach, Florida 33239
Information: 954.522.2593
Voicemail: 305.538.0121
Email: LGIRTF@bigfoot.com
Address the widespread discriminatory impact of immigration laws on the lives of lesbian, gay, bisexual, transgender and HIV positive individuals through education outreach, advocacy and the maintenance of a nationwide resource and support network. For more information visit: www.lgirtf.org
Midwest
Lambda Legal
Midwest Regional Office
11 E. Adam, suite 1008
Chicago, IL 60603-6303
Phone: 312.663.4413
Email: legalhelpdesk@lambdalegal.org
During the Help Desk Hours, Lambda Legal staff respond directly to members of our community who are seeking legal information and assistance with sexual orientation and HIV/AIDS-related discrimination.
Illinois Coalition for Immigrant and Refugee Rights
36 S. Wabash, suite 1425
Chicago, IL 60603
Phone: 312.332.7360
Email: info@icirr.org
Provide information and referrals to appropriate legal services. For more information visit: www.icirr.org
Heartland Alliances
Midwest Immigrant and Human Rights Center
208 South LaSalle Street, Suite 1818
Chicago, IL 60604
Phone: 312.660.1370
Email: moreinfo@heartland-alliance.org
Provide immigration assistance, deportation defense and asylum representation to low-income immigrants. For more information visit: www.heartlandalliance.org
South Central
Lambda Legal
South Central Regional Office
3500 Oak Lane Ave, suite 500
Dallas, TX 75219-6722
Phone: 214.219.8585
Email: legalhelpdesk@lambdalegal.org
During the Help Desk Hours, Lambda Legal staff respond directly to members of our community who are seeking legal information and assistance with sexual orientation and HIV/AIDS-related discrimination.
Human Rights Initiative of North Texas
2501 Oak Lawn Avenue, Suite 850
Dallas, Texas 75219
Phone: 214.855.0520
Email: hriinfo@hrionline.org
Web-site: www.hrionline.org
Provide free legal representation for those seeking asylum in the U.S. for various reasons, including sexual orientation. Must meet financial eligibility requirements.
Lesbian & Gay Immigration Rights Task Force/Houston
P.O. Box 1951
Houston, TX 77251
Phone: 713.426.3128 and 713.504.6588
Email: sdryam@houston.rr.com
Address the widespread discriminatory impact of immigration laws on the lives of lesbian, gay, bisexual, transgender and HIV positive individuals through education outreach, advocacy and the maintenance of a nationwide resource and support network. For more information visit: www.lgirtf.org
Lesbian & Gay Immigration Rights Task Force/New Orleans
2114 Decatur Street
New Orleans, LA 70116
Phone: 504.945.1103
Address the widespread discriminatory impact of immigration laws on the lives of lesbian, gay, bisexual, transgender and HIV positive individuals through education outreach, advocacy and the maintenance of a nationwide resource and support network. For more information visit: www.lgirtf.org
Texas Human Rights Foundation
3400 Montrose, suite 207
Houston, TX 77006
Phone: 713.522.0636
Email: thrf@thrf.org
Provide education and legal assistance to LGBT community and people impacted by HIV. For more information visit: www.thrf.org
West Coast
Lambda Legal
Western Regional Office
3325 Wilshire Blvd., Suite 1300
Los Angeles, CA 90010-1729
Phone: 213.382.7600
Email: legalhelpdesk@lambdalegal.org
During the Help Desk Hours, Lambda Legal staff respond directly to members of our community who are seeking legal information and assistance with sexual orientation-related and HIV/AIDS-related discrimination.
ACLU of Southern California
Lesbian and Gay Rights
1616 W. Beverly Blvd.
Los Angeles, CA 90026
Phone: 213.977.9500
Advocate for individual rights and equal justice, and against unwarranted government interference and abuse. For more information visit: www.aclu-sc.org
ACLU of Washington
705 Second Avenue, Suite 300
Seattle, WA 98104
Administrative Telephone: 206.624.2184
Complaint and Referral Line: 206.624.2180
Advocate for individual rights and equal justice, and against unwarranted government interference and abuse. For more information visit: www.aclu-wa.org
Immigration/Asylum Project
NCLR
870 Market Street, Suite 570
San Francisco, CA 94102
Phone: 415.392.6257 ext. 304
Email: info@nclrights.org
Offer free legal clinic and referral services for immigrants based on sexual orientation and assistance for bi-national couples. For more information visit: www.nclrights.org
Immigration Law Project
1625 N. Schrader Blvd.
Los Angeles, CA 90028-6213
Phone: 323.993.7670 ext. 3
Provide access to attorneys who represent clients who are lesbian, gay, bisexual, HIV-impacted or transgender.
International Gay and Lesbian Human Rights Commission
1360 Mission Street, Suite 200
San Francisco, CA 94103
Phone: 415.255.8680
Provide support services to immigrants and their advocates. For more information visit: www.iglhrc.org
Lesbian & Gay Immigration Rights Task Force/San Diego
c/o The Center
P.O. Box 3357
San Diego, CA 92163
Phone: 619.692.2077 ext. 802
Email: glimmigration@hotmail.com
Address the widespread discriminatory impact of immigration laws on the lives of lesbian, gay, bisexual, transgender and HIV positive individuals through education outreach, advocacy and the maintenance of a nationwide resource and support network. For more information visit: www.lgirtf.org
Northwest Immigrant Rights Project
909 8th Avenue
Seattle, WA 98104
Phone: 206.587.4009
Toll Free: 888.201.1014
Provide legal representation and community education to low-income refugees and immigrants. For more information visit: www.nwjustice.org
Although LGBT people are discriminated against in many ways, you can’t legally be denied entry into the United States based on your sexual orientation. While immigration law doesn’t recognize same-sex relationships yet (right now you can’t sponsor or be sponsored by a same-sex partner for immigration), we’re working to change that. If you are interested in immigrating to or visiting the United States, use this kit to learn about your basic options. Then contact a good immigration attorney using the resources provided.
