In June, 2013, the Supreme Court struck down the Defense of Marriage Act (DOMA) in the landmark case of United States vs. Windsor, which barred gay couples from the federal benefits attached to marriage. After the ruling, Secretary of Homeland Security Janet Napolitano made it clear her immigration agents would start accepting marriage-based visa applications from same-sex couples.
Napolitano stated in a press release “that all married couples are treated fairly and equally in the administration of our immigration laws.”
The Eligibility of Lesbian and Gay Couples for Green Cards
The most significant change in the wake of the June, 2013, ruling is the eligibility of those in a lesbian or gay marriages for green cards on behalf of foreign national spouses.
DOMA had meant numerous same-sex couples were forced to live outside of the U.S., or separately from their partners, due to its denial of federal immigration benefits to same-sex couples.
The new ruling means gay, lesbian, transgender and bisexual foreign nationals will now be eligible for the immigration benefits that others have received, provided they were married in a country or state that performs same-sex marriages. Currently, 17 U.S. states and the District of Columbia recognize same sex marriages. Unions and partnerships are allowed in Colorado.
The law is still developing in this fast-moving field but it should also include the recognition of step-child and step-parents relationships for same sex couples as well as deportation defenses and visa petitions for immigrants and non-immigrants.
Businesses
The Department of State will now recognize same-sex relationships and issue the appropriate visa classifications for people in same-sex relationships. This means the same-sex partner of an individual with an employment-based visa can receive a visitor B Visa and be able to join their partner.
Asylum Issues
There has been plenty of publicity about Russia’s controversial anti-gay laws, but the sad reality is members of the GLBT community are persecuted across the world. If you are in the U.S. and you face possible prosecution due to homosexuality in your home country, you may be able to claim asylum.
To obtain asylum you must be present in the U.S. in the first place. See the information about asylum provided by U.S. Citizenship and Immigration Services.
You must demonstrate a history of past persecution and a have well founded grounds to show you face future persecution. Members of the GLBT community fall into a particular social group that allows them to apply for asylum or withholding of removal.
However, the laws of your home country are relevant. If you are from a nation that has liberal laws towards homosexuality, you are less likely to gain asylum than if you are from a country that has strict laws against homosexuality such as parts of the Middle East and Africa.