We Have a New Administration, What Now? A Brief Overview of US Immigration Benefits for Individuals Who Identify as LGBTQ

On January 20, 2017, President Elect Donald J. Trump will be sworn in as our nation’s 45th President. Throughout his campaign President Elect Trump bowed to make the deportation of illegal immigrants one of his top priorities. This negative rhetoric towards immigrants has left thousands of immigrants fearful and uncertain about their future in America particularly LGBTQ individuals.

We are here to tell you not to panic. After President elect Trump takes office, there will still be many immigration options for LGBTQ individuals. Below is a brief overview of the immigration options available for LGBTQ individuals.

Green Cards for Spouses

A gay or lesbian U.S. citizen or legal permanent resident can file a relative visa petition (I-130) to sponsor and ultimately obtain a green card for their foreign-born spouse. The marriage could have been celebrated in the U.S. or abroad as long as the marriage is legally recognized in the place where it was celebrated and based on a genuine relationship.

K-1 Fiancé Visa

Gay and lesbian U.S. citizens can also file a Form I-129F, or fiancé petition, even if their fiancé resides in a country that refuses to recognize same-sex marriages. The fiancé can then enter the U.S. with the intention of marrying their U.S. citizen partner within 90 days and later file for a green card via the adjustment of status process.

Asylum Petitions

An individual who identifies as LGBTQ can apply for asylum protection based on their sexual orientation. If the individual is in the process of applying for asylum, their spouses may be added to the asylum petition as derivative applicants. Additionally, LGBTQ individuals who have already been granted asylum/refugee status in the U.S. have the right to file a relative petition to have their same-sex spouses join them in the U.S.

U Visas for Victims of Criminal Activity

Immigrant victims of certain crimes, such as a home invasion, burglary, domestic violence, sexual assault, or kidnapping, may be eligible to qualify for a U nonimmigrant visa provided that they are willing to assist law enforcement in the investigation and prosecution of the perpetrators of the crimes committed against them. The principal U Visa holder may also petition for a derivative U visa for qualifying family members. What this means for LGBTQ immigrants is that if you qualify for a U visa, your spouse and children may also be eligible for a derivative U visa and eventually permanent residence.

VAWA Protections for LGBTQ Spouses of U.S. Citizens and Lawful Permanent Residents

LGBTQ immigrants who are victims of abuse by their U.S. Citizen or Lawful Permanent Resident spouse can seek protection under the Violence Against Women Act by self-petitioning for permanent residency. Immigration Waivers Foreign nationals facing certain challenges such as a criminal conviction or accusation of being in the U.S. unlawfully may have to apply for a Form I-601 or I-601A immigration waiver, which require a demonstration of extreme hardship to a qualifying relative who is either a U.S. citizen or permanent resident. A same-sex spouse can act as the qualifying relative for the waiver.

Immigration Based on Employment

Same-sex spouses of gay and lesbian foreign nationals entering the United States for employment purposes have certain visa options available to them, including but not limited to:

  • E visa derivative status for the spouses of Treaty Trader (E-1) or Treaty Investor (E-2) visa holders.
  • H-4 visas for same-sex spouses want to join a spouse with a H-1B temporary work visa (intended for those who will be working temporarily in a specialty occupation).
  • L-2 visas for same-sex spouses of those who hold L-1 visas (for certain employees who are ‘transferring’ from another country to the U.S. to work for the same company).
  • O-3 visas for same-sex spouses of those who hold an O-1 visa for persons of extraordinary abilities, and those who hold an O-2 visa for the purpose of assisting the O-1 visa holder.
  • TD visa status for same-sex spouses of those with TN visa status as a citizen of Canada or Mexico under NAFTA.
  • R-2 visas for same-sex spouses of religious workers employed in the US on an R-1 visa.

Transgender Immigrants

Besides being able to apply for protection under the various immigration options listed above Transgender folks can obtaining identity documents that accurately reflect their gender identity and preferred name.

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