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| Gay & Lesbian Advocates & Defenders | |
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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. At the same time, their sexual orientation or HIV status can also be a disadvantage in gaining or maintaining legal immigration status in the U.S. GLAD has developed this fact sheet to 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 GLAD's Immigration Resources publication for a listing of legal services, and local, national, and international advocacy groups. Legal StatusHow can an immigrant get a legal status to stay in the U.S?An immigrant can apply for legal permanent residency. 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:
Same-Sex PartnersIf my partner and I enter into a civil union in Vermont, will the government recognize it for immigration purposes?No, a civil union conferred by the state of Vermont is not recognized by the federal government, which oversees immigration.Can I marry my same-sex partner in the U.S. so I can change my status to legal permanent resident?No. A federal law, the so-called “Defense of Marriage Act” (DOMA) passed in 1996, states that the federal government will not respect same-sex marriages. Therefore, even when states begin to end their discrimination and allow same-sex couples to marry, marrying a same-sex partner in the U.S. will not affect immigration status until DOMA is repealed or deemed unconstitutional by the courts.Do other countries recognize same-sex partnerships for the immigration purposes?Yes. 14 countries consider same-sex partners as families for immigration purposes: Australia, Belgium, Canada, Denmark, Finland, France, Iceland, Israel, the Netherlands, New Zealand, Norway, South Africa, Sweden, and the United Kingdom.What if my partner and I are legally married in another country? Will that allow me to sponsor my spouse for U.S. immigration?No. The law stating that the U.S. government does not respect marriages between same-sex couples applies no matter where the couple was married. Further, depending on your circumstances, getting married in another country could even lead to your spouse's deportation. While this law may be challenged in court, doing so may be very risky, both for your partner who may be deported, and for other same-sex bi-national couples. Before making any decisions about marriage, consult a qualified immigration attorney who is knowledgeable about LGBT issues for individualized advice about your situation.You should also be aware that legislation to allow U.S. citizens and permanent residents to sponsor their same-sex partners for immigration to the U.S. has been introduced in Congress. For more information about the Permanent Partners Immigration Act or to work for its passage, contact the Lesbian and Gay Immigration Rights Task Force or the Human Rights Campaign. HIV/AIDSCan I visit the US or get a green card if I am HIV positive?Generally, people with HIV are barred from both entering the country and receiving Legal Permanent Resident status (a green card). However, some waivers are available that permit people to enter the country or change their status to LPR. Before applying for a green card, you may want to find out your HIV status ahead of time at a site that conducts anonymous testing. You can find such a site by calling the National AIDS Hotline at 1-800-342-AIDS.What types of waivers are available?
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 person who cannot support him- or herself without cash benefits such as Social Security Income (SSI). Public charge is not a barrier to obtaining citizenships, 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.If I am already a legal permanent resident and I discover I am HIV-positive, can I apply for naturalization to become a citizen?Yes. You do not have to take an HIV test when you apply for naturalization, and the rules that exclude applicants from legal permanent residency or from entry into the country do not apply in this case. However, you should speak to an immigration attorney who can advise you on any other HIV-related issues that may arise in the naturalization application process.Asylum Based on Sexual Orientation or HIV/AIDS StatusIn 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. Resources
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