The United States was once hostile towards LGBT immigration. However, laws and immigration policies of the United States have changed to make it generally welcoming to LGBT immigrants. Nevertheless, there are still difficulties particular to LGBT immigrants. In this article, we will review certain provisions of immigration law that touch on LGBT immigrants.
Asylum and Refugee Protection
LGBT individuals may qualify for asylum under the Immigration and Nationality Act. Longstanding precedent allows for LGBT individuals to demonstrate standing in a particular social group for which they have faced persecution or face a reasonable fear of persecution in their home countries. It has been held that membership in a particular social group may be demonstrated by showing that an individual was perceived to be LGBT even if he or she was actually not. Otherwise, an LGBT asylum applicant will have to demonstrate to the satisfaction of immigration officers that he or she is an LGBT individual.
Now that same-sex marriage is legal throughout the United States, USCIS will treat same-sex marriages with aliens the same as it would aliens in heterosexual marriages. However, it is important to note that the marriage must be valid in the place where the marriage was celebrated for it to qualify for immigration purposes.
Adoption by Same-Sex Couples
Longstanding precedent allows same-sex couples to adopt foreign-born children and accord them with status under the relevant provisions of the INA.
Document Issuance for Transgender Individuals
An alien who has changed his or her gender may obtain documentation from USCIS reflecting the new gender. An alien who is seeking such documentation must submit medical certification of the change of gender, evidence that any name change was completed under applicable law, and possibly evidence of identity in the new gender. Proof of sex reassignment surgery is not required or requested.
LGBT individuals often face great risks on account of their identities when placed in immigration detention. The ICE detention standards address protocols designed to protect LGBT individuals from facing harm while in immigration detention. It is crucial for detainees to be aware of their rights to be kept safe while in detention and to consult with immigration counsel and/or an organization dedicated to helping such individuals in their interactions with the immigration system.
The issues here are generally complex immigration matters for which consulting with immigration counsel is recommended for anyone. Despite the U.S. immigration system’s being welcoming to LGBT individuals, such individuals may face unique challenges in procuring immigration protection and/or benefits. This is especially true in the context of asylum applications and immigration detention. LGBT individuals are well-advised to consult with experienced immigration counsel.