In the last decade, the LGBT community has made strides in a multitude of areas, including marriage equality, anti-discrimination laws, and one often overlooked issue: immigration. Until the key provision of the Defense of Marriage Act was overturned in 2013 by the U.S. Supreme Court in the historic U.S. v. Windsor decision, U.S. citizens could not petition for green cards for their same-sex spouses. The immigration system only recognized straight couples, leaving LGBT foreign nationals with limited options to immigrate to the U.S. to be with their partners.
Now, with the demise of DOMA and same-sex marriage legal throughout the U.S., the doors have been opened for same-sex couples to live together in the U.S. Green cards are equally available to LGBT couples and straight couples, and the application process is exactly the same – in theory. For some, however, achieving green card status is not as simple in real life as it is on paper.
Perhaps due to a long history of discrimination, many same-sex couples have been hesitant to apply for immigration benefits, assuming there must be some sort of catch. As an immigration attorney, I have had same-sex clients refuse to give their names or even visit the office. LGBT couples still face logistical roadblocks when applying for green cards that straight couples do not have to deal with.
Green card applicants can face discrimination
It’s difficult to quantify how discrimination plays a role in the process of obtaining a green card, but it’s an issue that many same-sex partners consider. Thankfully, once DOMA was overturned, United States Citizenship and Immigration Services officials were quickly directed to begin reviewing green card applications from LGBT couples, and they reopened formerly rejected applications at no charge. But regardless of what the law says, some individuals still hold biases.
Federal law protects LGBT couples from being denied immigration benefits based on their sexual orientation, but there’s always the possibility of encountering unfair or even hostile treatment from immigration officers. Same-sex couples applying for benefits should seek help from immigration attorneys or support from immigration advocacy groups to navigate the complex application process.
‘Proof of relationship’ requirements not so simple for LGBT couples
To obtain a green card, couples are required to undergo a vigorous interview process to prove that their marriage is legitimate. Spouses have to provide a paper trail of evidence showing the length and seriousness of their relationship, which can include joint bank accounts, assets owned together, mail sent to the same address, group photos, and testimonies from family, friends, and co-workers. It’s difficult to obtain a green card if your relationship – or sexual orientation, for that matter – is not public knowledge.
For straight couples in real relationships, these requirements shouldn’t pose an issue. But many same-sex couples do not meet these standards because they have been forced to keep their relationships quiet or completely hidden. Couples living in conservative areas or dealing with unsupportive family members may not have a large group of people to back up their claims. Couples also may have misrepresented their relationships on documents and government applications in the past, complicating the issue further.
So far, the immigration system has not presented a solution for same-sex couples who have difficulty meeting proof of marriage requirements. In the meantime, LGBT couples may need to be more creative when going through the immigration process. Records of phone calls to each other, joint online accounts and travel records can serve as acceptable ways to show proof of a relationship if more traditional markers are not available.
Expired and temporary visas complicate the immigration process
Before same-sex marriage was recognized by the immigration system in 2013, there was no legal path to residency for international LGBT couples. Once their time in the U.S. was up, LGBT foreign nationals had to either leave their loved ones behind or risk deportation by staying in the country on temporary or expired visas. Many spouses chose to stay together, and a significant number of couples who are now eligible for green cards through marriage are stuck in legal limbo with unlawful paperwork.
Activist groups have also urged USCIS to be reasonable when dealing with undocumented LGBT spouses, considering that, for decades, it was virtually impossible for same-sex couples to obtain green cards.
In the larger immigration conversation, LGBT rights are often overlooked. Difficulty obtaining a green card is just one piece of the puzzle for LGBT people attempting to reside in the U.S. Transgender men and women detained by Immigration and Customs Enforcement are often mistreated, and homosexuality is still a crime in 75 countries. It is essential that LGBT immigration challenges are brought to light – it’s the only way to ensure that all people can be with their loved ones, no matter their sexual orientation.
Yesenia Acosta is an immigration attorney at the Law Offices of Scott Warmuth (http://www.law888.com), with multiple locations throughout the Los Angeles area. She is a strong advocate for special immigrant application including victims of crime, unaccompanied minors, LGBT applicants, and asylum seekers.