LGBTQ Rights + Immigration 

Statement from Secretary of Homeland Security Janet Napolitano on July 1, 2013

“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” 

June is Pride Month. As LGBTQ+ allies, we are discussing the rights of the LBGTQ+ community in this month’s blog.

Can same-sex couples apply for a green card?

Yes! Because same-sex marriages are legal in the United States, same-sex marriages are treated the same as heterosexual marriages for immigration purposes under U.S. law. As such, a U.S. citizen spouse can submit an I-130 family petition for his or her spouse of the same-sex. In order for USCIS to approve an I-130 family petition for both heterosexual and homosexual couples, the couple must demonstrate that they are married for love, and not for the purpose of obtaining residency for one of the spouses. Therefore, same-sex couples need to submit the same documents as heterosexual couples to prove an authentic marriage. 

Examples of evidence to prove an authentic marriage: 

• Lease agreement in both names
• Joint utility bill(s)
• Copies of your driver’s license or ID cards showing the same address 
• Joint bank account statements 
• Joint credit card statements 
• Shared insurances cards (car and/or medical) 
• Family photos 
• Declarations from family and friends attesting to your relationship 

Can I apply for naturalization after three years based if I obtained my legal permanent residency from my same-sex marriage?

Yes! Homosexual marriages are treated the same as heterosexual marriages. Green card holders who are married to a U.S. citizen are eligible to apply for naturalization after three years, rather than five years for other green card categories. 

Can I apply for a K-1 fiancé visa for my same-sex partner? 

Yes, as long as you, the petitioner is a U.S. Citizen and are able to satisfy the requirements for applying for a fiancé visa. 

Do I need to be legally married for my same-sex partner to petition me? 

Yes, you must be legally married for your same-sex partner to petition you. Although civil unions provide the same benefits as heterosexual marriages, immigration benefits are not included. 

Does it matter where the same sex marriage took place?

Yes, your marriage must be valid where it was performed. If you’re living in a country that does not recognize same-sex marriages and you are married in this country, the United States will not recognize your marriage. In this case, you may want to consider applying for a fiancé visa. 

Can transgender change their name and/or gender on their immigration documents?

Yes! You can update or change your name and/or gender on your immigration documents. To change your name, you need to first obtain a court order for name change or other proof of the legal name change. To change your gender, you need a birth certificate, passport, driver’s license, court order, or other official government-issued documentation recognizing the new gender, OR a letter from a licensed healthcare provider certifying the change in gender. The licensed healthcare provider includes licensed counselors, nurse practitioners, physicians, physician assistants, psychologists, social workers, and therapists. Proof of sex reassignment surgery or other specific medical treatment is not required. 

Can I apply for asylum in the United States if I’m a member of the LGTBQ community? 

Yes, you can apply for asylum. To establish your eligibility for LGBTQ asylum, you must have a well-founded fear of persecution in your home country due to your sexual orientation. You must submit your application for asylum within one year of arriving in the United States. 

What evidence should I submit with my application for asylum based on my sexual orientation? 

Click here to see what to submit with your application. 

Wheeler Law is available to answer any other questions you may have, and/or help you take the next steps to your, or your loved ones, future. Wheeler Law works hard to defend your legal rights and keep families together.  Call us now to schedule a consultation: (602) 586-5625. 

Follow us on social media for more tips about LGBTQ+ rights and immigration.