Immigration Issues Affecting LGBTQ Individuals

If you are a United States citizen, and you have a same-sex partner who is not, or if you are an LGBT 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 LGBT individual is a U.S. citizen or lawful permanent resident (LPR), he or she can file a petition or application based on the relationship with the United States Citizenship and Immigration Services (USCIS) to classify the 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.

LGBT 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.

Gay and lesbian 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.