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Immigration | Asylum, Detention and Other Immigration Matters | National/Federal

The complex system of rules and laws relating to United States immigration can be frightening and difficult for anyone to navigate—even more so for lesbian, gay, bisexual and transgender immigrants and people with HIV.

LGBT and HIV-positive people may experience harassment or persecution in their home countries. The information below will answer some of the most common questions. However, the following is only intended to provide legal information, not legal advice, and you should consult with an immigration expert to discuss your specific situation.

You can call GLAD for a referral to an immigration attorney sensitive to the needs of LGBT and HIV positive people. In addition, please see the list of resources at the end of this publication for a listing of legal services, and local, national, and international advocacy groups.

National/Federal Asylum, Detention and Other Immigration Matters Q&A

Legal Status

How can an immigrant get a legal status to stay in the U.S.?

An immigrant can apply for legal permanent residency (LPR). This is the same thing as a “green card” or Alien Registration Card.

How can an immigrant obtain a green card?

There are various ways of obtaining legal permanent residency. Here are some of the most common:

  • Family-sponsored immigration—if you are a spouse, parent, or unmarried child of a U.S. citizen.
  • Employment-based immigration—if there is a demonstrated lack of U.S. workers for a specific position, generally a professional position requiring a university degree.
  • Diversity visa lottery—there are only a limited number of these immigrant visas, and they are only available to immigrants from certain countries.
  • Asylum—for people who fear persecution in their home countries and seek protection in the U.S.
  • Other options may be available in unusual circumstances. To learn more about any of these options, you should consult with an immigration expert.

Same-Sex Partners

What if my same-sex partner and I legally marry? Will that allow me to sponsor my spouse for U.S. immigration?

In most cases, the marriage should allow you to sponsor your foreign national spouse for a green card, regardless of where you are living in the United States. However, this was not always the case. On June 26, 2013, The United States Supreme Court in the Windsor case ruled that the 1996 federal Defense of Marriage Act (DOMA) was unconstitutional. Prior to this ruling, a U.S. citizen was not able to sponsor a same-sex spouse for a green card.

However, even though it may be possible now for marriage to help improve the immigration status of a foreign national, the process of applying for a green card is very complex, and it requires that many conditions be met; so before marrying, and certainly before sponsoring a spouse for the green card, the couple should meet with an experienced immigration expert.

HIV/AIDS

Can I visit the US or get a green card if I am HIV positive?

On January 4, 2010, the United States lifted the long-standing ban that for the most part prevented people with HIV from both entering the country and receiving Legal Permanent Resident status (a green card). Also, people who apply for a green card are no longer required to take an HIV test as part of the medical examination.

Does this mean that HIV status is completely irrelevant to immigration to the United States?

No. All applicants for lawful permanent residence must demonstrate that they are not likely to become a “public charge.” If you are in relatively good health, being HIV+ should not be an obstacle to getting a green card. However, if you have been in a nursing home or are not able to work, it is possible that you would be considered likely to become a “public charge.”

How does the government determine if you are a “public charge”?

The government may determine you are a “public charge” and deny you legal permanent residency or re-entry into the U.S. if you leave for a period of time. A “public charge” is a 3 person who cannot support him- or herself without cash benefits such as Social Security Income (SSI). Public charge is not a barrier to obtaining citizenship, nor is it an issue for people granted asylum. To determine whether a person will become a public charge, the government looks at a number of factors including age, health, income, family size and education and skills.

Asylum Based on Sexual Orientation or HIV/AIDS Status

Some immigrants have been granted asylum in the U.S. based on extreme persecution in their home countries.

In such cases, the government of that home country is usually either the perpetrator of the persecution, or unwilling or unable to stop the persecution.

In order to qualify for asylum, you must be physically present in the U.S. or at an airport or border crossing of the U.S. You must prove you either cannot or will not return to your country because you have a “well founded fear of persecution” based on your race, religion, nationality, political opinion, or membership in a particular group (such as LGBT or HIV-positive people).

Although you may apply for asylum regardless of your immigration status, if you entered the country illegally, you have just one year to apply. There are also some risks involved in applying for asylum if you are undocumented: the application may be used as evidence in removal proceedings.

To prove your claim for asylum, you must provide corroborating evidence of the specific conditions in your country for gays and lesbians, or people with HIV/AIDS.

Documentation may take a variety of forms including expert witness testimony, reports by human rights organizations and academic research papers.