Immigration Law and the LGBTQ Community

Legal Eagles

“Do you help gay couples?”

The year was 2013 and the Supreme Court had recently ruled that the same-sex marriage ban was unconstitutional in the landmark United States v. Windsor case. I could tell the caller on the line was nervous and looking for help. He was undocumented and had recently married his U.S. citizen partner. He let me know that they had called other law firms and had not been treated well at all. I told him how sorry I was and assured him that we would be happy to work with them. As I hung up the phone it occurred to me that even though the Supreme Court had confirmed the constitutional rights of same-sex couples, they still faced discrimination on a regular basis.

Because immigration law is federal, U.S. citizens and permanent residents were allowed to file petitions for their same-sex spouses following the 2013 Supreme Court decision. North Carolina would not come to recognize the marriage rights of same-sex couples until 2014, and it wasn’t until 2015 that the U.S. Supreme Court ruled that all states must recognize that same-sex couples have the right to marry.

Navigating the U.S. immigration system is difficult. While the laws may treat same-sex couples equally, it’s imperative for LGBTQ immigrants and their partners to find an attorney who specializes in immigration law and who works frequently with LGBTQ couples to make sure that they are properly advised about their legal options.

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There are multiple paths to obtaining lawful status in the United States, including:

• Marriage-Based Green Card Cases

Individuals who are married to a U.S. citizen may be able to obtain permanent resident status in the United States by applying for a process known as adjustment of status. This is possible for immigrants who entered the United States with a visa, or may have had a petition filed on their behalf prior to April 30, 2001. The process requires extensive paperwork to be filed with the U.S. Citizenship and Immigration Service (USCIS). The applicant can receive a temporary work and travel permit while the case is pending. The couple will be interviewed at the local USCIS office to confirm that they have a valid marriage and that the applicant is eligible to become a permanent resident. If the couple has been married for less than two years at the time of approval, the applicant will be issued a two-year, conditional green card. Prior to the expiration of the conditional resident card, the couple will have to file another petition to remove the conditions on the residency and receive the permanent resident card. If they have been married for more than two years, the applicant will be issued a 10-year green card.

• Waivers

If a person entered the United States without a visa, it will be necessary for the immigrant to seek a waiver and travel back home to the country of origin to have the interview at the U.S. Embassy. The waiver process involves multiples steps with different government agencies and is complex. Not everyone is eligible for a waiver. For those who are eligible, LGBTQ applicants may be at a heightened risk if they have to return to a country where same-sex marriage is not recognized and LGBTQ couples are persecuted. A knowledgeable immigration attorney can help prepare a strong waiver case while also working with the couples to take extra precautions to ensure their safety.

• Consular Processing

For spouses of U.S. citizens and permanent residents who live abroad, consular processing is another path to lawful status. This process requires the U.S. citizen or permanent resident to file a petition in the United States. Upon approval, the petition is routed through the National Visa Center, the agency responsible for collecting all required documentation prior to scheduling the interview at the U.S. Embassy or Consulate abroad. The applicant is interviewed and issued a visa to travel to the United States. Upon arrival, the applicant receives the permanent resident card in the mail. As mentioned previously, the card will be conditional if the marriage is less than two years old at the time of approval.

• Other Forms of Relief for LGBTQ Immigrants Who Have Suffered

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There are other forms of relief available to LGBTQ immigrants including the U visa, for those who have been victims of severe crimes and assisted the authorities with the investigation of the crime. The T visa is an option available to those who have been victims of human trafficking. Under the Violence Against Women Act (VAWA), immigrants (regardless of gender) who have been subjected to abuse at the hands of a U.S. citizen or permanent resident spouse can file a petition to seek permanent resident status in the United States. Asylum is another form of relief that may be available for LGBTQ individuals who fear persecution if they are returned to their country of origin.

If all of this sounds quite complicated, that’s because it is! No two cases are alike, and it is extremely important for immigrants and their families to seek the advice of an experienced immigration attorney prior to filing any type of application. The immigration process can be costly and take years to complete. Filing the wrong paperwork can have severe consequences, in some cases leading to removal from the United States.

For those who have no legal path to lawful status in the United States, it is important to know the numbers of local immigration attorneys who can help in the event someone is detained by immigration authorities.

It is incredible to think that less than five years ago two people in love were prohibited from marrying each other because of their gender. While legal victories have opened the door to same-sex marriage and all of the benefits that come with it, we must not forget how long it took to get to this point and how much work still has to be done to protect both immigrants’ rights and LGBTQ rights.

Jessica Yañez is a North Carolina certified specialist in immigration law.

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