Many LGBTQ Americans and foreigners have questions about how U.S. immigration law applies to the LGBTQ community and same-sex couples. Lesbian, Gay, Bisexual, and Transgender (LGBT) immigrants often face unique challenges and obstacles. A recent New York Times article says President Biden plans to expand immigration opportunities for LGBTQ refugees from countries where they are persecuted or where same-sex marriages are not recognized.
In the United States, since 2015 LGBTQ individuals and couples have essentially the same immigration rights as all immigrants. In the U.S., LGBTQ people are not a protected class in the areas of employment, housing, health care access, education, and public accommodations. While LGBTQ foreigners have the same rights as LGBTQ Americans, undocumented LGBTQ individuals face challenges, especially in detention facilities.
In the United States, same-sex spouses and their children are entitled to apply for a Green Card under the same qualifications as the main or any other Green Card applicant. When the United States Supreme Court ended DOMA, the Defense of Marriage Act, USCIS immigration guidelines were updated.
To qualify for a K-1 visa, same-sex fiancés must meet the same criteria as any other K-1 immigrant and take specific actions once in the United States. Same-sex marriage is legal in Illinois. Same-sex couples who are married in Illinois are eligible for family-based immigration benefits.
A Green Card holder can petition for a visa for their same-sex spouse and their children who are unmarried and under the age of 21. The petitioner names them on the initial visa petition, Form I-130, to start the process for them. Eventually, each family member must submit their own applications for a Green Card.
A same-sex couple must take additional steps to be eligible for family immigration benefits. An LGBTQ couple must ensure that their marriage is recognized in the state or country they were married in and the state they are residing in when they apply to sponsor a same-sex spouse and their children. Same-sex marriage is legal in Illinois; same-sex couples who are married in Illinois (or other jurisdiction that recognizes same-sex marriages) are eligible for family-based immigration benefits.
The U.S. State Department (DOS) has made it easier for U.S. citizens who used reproductive technology to confer U.S. citizenship to his or her child born while abroad. This also applies to same-sex couples. Under the new interpretation, children born abroad to married parents may be entitled to birthright citizenship as long as one parent is a U.S. citizen and the child is related either genetically or gestationally to one parent.
An experienced immigration lawyer can help same-sex couple families determine their eligibility for services, and the steps to take. Mario Godoy and the other immigration attorneys at the Godoy Law Office can assess your situation and advise you on your best options. Call today at 630-912-0322.
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