LGBT Immigration Options

Prior to June 2013, immigration law was governed by the Defense of Marriage Act (DOMA) which stated that a qualifying “marriage” for the purposes of federal law exists only between a man and a woman. Once DOMA was declared unconstitutional, USCIS was able to begin adjudicating both immigrant and nonimmigrant visa petitions for legally married same sex couples.

Marriage-Based Green Cards Process A U.S. citizen or permanent resident may petition to have his or her LGBT spouse come to the United States and receive a green card. The couple would need to marry in a state where same sex marriages are legal. The couple could also marry in another country where same sex marriages are legal and then the foreign national could seek to enter on an immigrant visa.

Fiancee Visa K-1 K visas are also available to same-sex couples. U.S. citizen can apply for a K visa for his or her foreign born same-sex fiancé or fiancée who is living abroad. Once in the United States, they can marry anywhere in the country in order to become eligible to apply for a greencard.

NonImmigrant Visas (NIVs) The same-sex spouse of a nonimmigrant visa holder will be eligible for a derivative visa. For example, the same-sex spouse of an H1B visa holder will also be eligible to accompany his or her spouse in the United States with an H4 visa.

LGBT Asylum Refugee or asylum status may be granted to an individual seeking protection because they have suffered persecution or fear that they will suffer persecution due to race, religion, nationality, membership in a particular social group or political opinion. Homosexual applicants for asylum can constitute a particular social group who may seek protection in the United States because of the persecution on account of their sexual orientation in their home countries.

To learn more about your options contact our San Francisco law firm to speak with one of our immigration attorneys.