LGBTQ+ Individuals Facing Immigration Legal Issues
If you are a United States citizen, and you have a same-sex partner who is not, or if you are an LGBTQ+ person who wants to emigrate to the U.S., you may qualify for certain visas. Until 2013, same-sex couples were not given the same legal rights as heterosexual couples. The Defense of Marriage Act (DOMA) had prohibited the federal government from giving same-sex couples the same benefits as heterosexual couples. Now, however, when one LGBTQ+ individual is a U.S. citizen or lawful permanent resident (LPR), they can file a petition or application based on the relationship with the United States Citizenship and Immigration Services (USCIS) to classify their foreign partner as a fiancé or fiancée of a U.S. citizen. This would allow the foreign national to enter the United States on a K-1 fiancé visa and would allow the U.S. citizen to marry the person within 90 days of arrival. If the foreign national same-sex fiancé has children under the age of 18, they can also qualify for a green card.
After U.S. v. Windsor in 2013, which overturned Section 3 of the Defense of Marriage Act (DOMA), and Obergefell v. Hodges in 2015, which recognized same-sex marriage across the country, immigration rights for same-sex couples became virtually identical to those for opposite-sex couples.
LGBTQ+ individuals are also eligible to apply for K-3 marriage visas for same-sex spouses of U.S. citizens who are foreign citizens living overseas. The K-3 visa is often known as the ‘marriage visa’ or the ‘spouse visa.’ It is a non-immigrant multi-entry visa that is generally valid for two years. Individuals seeking K-3 visas must meet certain requirements. To qualify for a K-3 non-immigrant visa, you must be legally married to a U.S. citizen and have a Form I-130, Petition for Alien Relative, filed by your U.S. citizen spouse on your behalf.
Foreign nationals who are already living in the U.S. may adjust their statuses to obtain permanent residency based on a marriage to a U.S. citizen or lawful permanent resident.
LBGTQ persons may also go along with their same-sex spouses who are entering the United States on certain types of employment visas. For example, an H-4 visa is for the spouse of an H-1B Specialty Occupations visa holder. H-4 visa holders are not eligible to get a Social Security Number (SSN) and are not allowed to seek employment while in the United States. However, H-4 visa holders can obtain a driver’s license, open a bank account, and get a Tax ID Number (TIN) for tax purposes.
An L-2 can be sought for the same-sex spouse of an L-1 intracompany transferee visa holder. The L-2 dependent visa is valid for the duration of the L-1 principal visa. An L-2 visa holder is able to seek employment while in the U.S. once an Employment Authorization Document (EAD) is filed with the USCIS.
The E-2 derivative visa can be used for the same-sex spouse of an E-2 treaty trader or treaty investor visa holder. The duration of the E-2 derivative visa lasts for the same time as the principal visa. Spouses can seek employment in the U.S. by seeking employment authorization.
Additionally, there are green card benefits available for spouses of EB-5 investors. Unmarried children under the age of 21 are also considered dependents and are eligible for green card benefits under the EB-5 principal visa.
Immigration Law Center Contents
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Immigration Law Center
- Green Cards and Lawful Permanent Residence in the U.S.
- Becoming a U.S. Citizen Under Naturalization Law
- Immigrant Visas Leading to Lawful Permanent Residence in the U.S.
- Non-Immigrant Visas Providing a Legal Basis for Temporary Residence in the U.S.
- Work Visas Allowing Foreign Nationals to Legally Enter the U.S.
- Family Immigration Options Under the Law
- Investor Visas Providing Legal Status in the U.S.
- Visitor Visas Allowing Foreign Nationals to Legally Enter the U.S.
- Student Visas Allowing Foreign Nationals to Legally Enter the U.S.
- Denials of Visas or Green Cards & Your Legal Options
- Consular Interviews When Seeking a Visa or Green Card
- VAWA Petitions for Foreign Nationals Affected by Domestic Violence & Seeking Legal Status in the U.S.
- How Children of Foreign Nationals Affected by Domestic Violence Can Legally Obtain Immigration Status
- Work Authorization for Foreign Nationals Without Green Cards
- How Foreign Nationals Unable to Return Home Safely May Legally Qualify for Temporary Protected Status
- Asylum for Foreign National Refugees
- Humanitarian Parole for Foreign Nationals With Compelling Needs
- Advance Parole for Foreign Nationals Living in the U.S. Without Green Cards
- Deferred Action for Childhood Arrivals (DACA) and Temporary Legal Protections From Deportation
- Visa Waiver Program for Brief Visits to the U.S. Without Formal Legal Status
- Grounds for Finding a Foreign National Legally Inadmissible to the U.S.
- How the Deportation Legal Process Works
- Appeals of Immigration Decisions Through the Legal Process
- LGBTQ+ Individuals Facing Immigration Legal Issues
- Inspections of Foreign Nationals Seeking to Legally Enter the U.S.
- Unlawful Presence in the U.S. & Legal Penalties
- Tax Law Issues for Visa or Green Card Holders
- Waivers of Legal Inadmissibility to the U.S.
- How a Criminal Record Legally Affects Immigration Status
- How Social Media Use Can Affect Legal Admissibility to the U.S.
- Immigration Law FAQs
- Immigration Legal Forms
- Find an Immigration Law Lawyer
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