LGBT Issues in immigration
Attorney Jeff Jung is very experienced in LGBT immigration issues
and can assist you in these legal matters with expertise, empathy and compassion.
and can assist you in these legal matters with expertise, empathy and compassion.
Marriage-Based Adjustment of Status: Like Any Other Couple?
Though not so long ago it seemed it would never happen, Citizens and Permanent Residents of the United States can petition for legal status for a same-sex spouse. One of the most common questions I receive concerning LGBT immigrants is how the marriage-based application process is different for same-sex couples as compared to opposite-sex couples.
In theory, there is no difference. Many of the items opposite-sex couples use to prove the bona fide nature of their relationship are just as available and likely to be possessed by same-sex couples: joint health insurance, joint auto insurance, life insurance, lease agreements, jointly owned property, and shared utility bills, for example. The interviews I have attended have stuck to the same lines of questioning: how did you meet, how did the relationship develop, how well do you know each other's history and basic routines?
However, it cannot be denied that in reality there are some differences. Same-sex couples are much less likely to have children together, one of the easiest ways of satisfying an adjudicating officers doubts, and enthusiastic affidavits from family members acknowledging the couple may be harder to come by if one or both spouses come from families that are not accepting of the marriage. It may even be the case that the parents do not know about the marriage, a circumstance that would be rare and suspicious in an opposite-sex couple but is understandably common for same-sex couples. The photos of big weddings and family reunions may be absent for similar reasons. Thus, same-sex couples may have to work harder at establishing the other elements of proof to make up for this "deficit."
Some attorneys have reported, as well, that not all interviews are conducted with the same professionalism and intelligence that would be expected. Officers have been reported to ask intrusive, inappropriate and even ignorant questions, such as whether the relationship was monogamous, when the applicants knew they were gay, or why the officer should believe that they are. Many officers are unable to comprehend how a person may have been married to someone of the opposite sex in the past but in a same-sex marriage now, explanations of closetedness or bisexuality both being beyond their world experience. These lines of questioning should not be permitted, and at least in Los Angeles we are fortunate to have heard little to nothing of such occurrences.
A combination of thorough preparation of bona fide materials and an attorney prepared to manage any wayward officers should be sufficient to ensure that a same-sex marriage case proceeds like any other.
Though not so long ago it seemed it would never happen, Citizens and Permanent Residents of the United States can petition for legal status for a same-sex spouse. One of the most common questions I receive concerning LGBT immigrants is how the marriage-based application process is different for same-sex couples as compared to opposite-sex couples.
In theory, there is no difference. Many of the items opposite-sex couples use to prove the bona fide nature of their relationship are just as available and likely to be possessed by same-sex couples: joint health insurance, joint auto insurance, life insurance, lease agreements, jointly owned property, and shared utility bills, for example. The interviews I have attended have stuck to the same lines of questioning: how did you meet, how did the relationship develop, how well do you know each other's history and basic routines?
However, it cannot be denied that in reality there are some differences. Same-sex couples are much less likely to have children together, one of the easiest ways of satisfying an adjudicating officers doubts, and enthusiastic affidavits from family members acknowledging the couple may be harder to come by if one or both spouses come from families that are not accepting of the marriage. It may even be the case that the parents do not know about the marriage, a circumstance that would be rare and suspicious in an opposite-sex couple but is understandably common for same-sex couples. The photos of big weddings and family reunions may be absent for similar reasons. Thus, same-sex couples may have to work harder at establishing the other elements of proof to make up for this "deficit."
Some attorneys have reported, as well, that not all interviews are conducted with the same professionalism and intelligence that would be expected. Officers have been reported to ask intrusive, inappropriate and even ignorant questions, such as whether the relationship was monogamous, when the applicants knew they were gay, or why the officer should believe that they are. Many officers are unable to comprehend how a person may have been married to someone of the opposite sex in the past but in a same-sex marriage now, explanations of closetedness or bisexuality both being beyond their world experience. These lines of questioning should not be permitted, and at least in Los Angeles we are fortunate to have heard little to nothing of such occurrences.
A combination of thorough preparation of bona fide materials and an attorney prepared to manage any wayward officers should be sufficient to ensure that a same-sex marriage case proceeds like any other.
Asylum: Fear of Going Home
It is an interesting irony in the world of immigration law that the LGBT identity that brought harassment and persecution to an immigrant before coming to the United States can be the very thing that opens the doorway to Permanent Residence. Asylum is an immigration status accorded to those who can prove that they face persecution on account of certain grounds by the government or by forces the government is unwilling or unable to control if they are returned to their country of origin. For many years, immigrants coming from LGBT-hostile nations have won asylum claims on the grounds of being gay, lesbian, or trans, sometimes for being HIV positive, sometimes just for being perceived as LGBT.
Another irony is that as the legal and practical situations have improved in certain countries for LGBT persons, asylum claims have become harder to win. Government attorneys fighting against asylum claims have made such inane arguments as claiming that the existence of a gay pride parade means that LGBT persons are no longer routinely subject to harm from police or other government agents in certain countries. Immigration attorneys are continually fighting against these attempts, working hard to document the human rights violations still suffered by the LGBT community across the world.
Another challenge for asylum claims is the fact that they must be filed within one year of arrival in the United States, a requirement that eliminates many from consideration. However, an exception to this deadline exists where the applicant can prove that exceptional circumstances caused the delay, or that the home country's circumstances have significantly deteriorated since the one year elapsed. One way to obtain this exception is to argue that the applicant had not realized his or sexual identity until after the one year had elapsed. Though it is a compelling argument, the difficulty is in convincing the adjudicator of the claim's authenticity.
It is an interesting irony in the world of immigration law that the LGBT identity that brought harassment and persecution to an immigrant before coming to the United States can be the very thing that opens the doorway to Permanent Residence. Asylum is an immigration status accorded to those who can prove that they face persecution on account of certain grounds by the government or by forces the government is unwilling or unable to control if they are returned to their country of origin. For many years, immigrants coming from LGBT-hostile nations have won asylum claims on the grounds of being gay, lesbian, or trans, sometimes for being HIV positive, sometimes just for being perceived as LGBT.
Another irony is that as the legal and practical situations have improved in certain countries for LGBT persons, asylum claims have become harder to win. Government attorneys fighting against asylum claims have made such inane arguments as claiming that the existence of a gay pride parade means that LGBT persons are no longer routinely subject to harm from police or other government agents in certain countries. Immigration attorneys are continually fighting against these attempts, working hard to document the human rights violations still suffered by the LGBT community across the world.
Another challenge for asylum claims is the fact that they must be filed within one year of arrival in the United States, a requirement that eliminates many from consideration. However, an exception to this deadline exists where the applicant can prove that exceptional circumstances caused the delay, or that the home country's circumstances have significantly deteriorated since the one year elapsed. One way to obtain this exception is to argue that the applicant had not realized his or sexual identity until after the one year had elapsed. Though it is a compelling argument, the difficulty is in convincing the adjudicator of the claim's authenticity.
Hardship-Based Waivers: Making Strengths out of Vulnerabilities
Many grounds of inadmissibility (which prevent a person from gaining permanent residence) or removability (which cause a permanent resident to be deported) can be waived by proving that the immigrant -- or more usually a certain "qualifying relative" of the immigrant -- will suffer extreme hardship if the benefit being sought is not granted. Extreme hardship can be financial, medical, emotional, or familial among other categories. Often LGBT identity can go a long way toward helping to establish this hardship.
The most obvious example, is if the immigrant's home country is hostile to LGBT persons or relationships. If the immigrant is married and his/her marriage will not be recognized in the home country, or worse, if LGBT persons are exposed to persecution, imprisonment, or death, that is clear hardship. Lack of protection from discrimination in the workplace, lack of parental rights, and lack of other civil rights are other clear indicators of hardship. But there are other angles to pursue as well. Many times, the immigrant's U.S. spouse has suffered substantial trauma in the process of coming out, past physical abuse, family alienation, and these are all things that create a psychological background that may be more "extreme" than in the typical scenario. Trans individuals may suffer disruption to their process of transition, HIV-positive individuals may face the loss of medical treatment, and the loss of an LGBT community and all that it represents may be at stake as well. One way or another, it is almost certain that LGBT identity will be helpful in meeting a hardship standard.
Many grounds of inadmissibility (which prevent a person from gaining permanent residence) or removability (which cause a permanent resident to be deported) can be waived by proving that the immigrant -- or more usually a certain "qualifying relative" of the immigrant -- will suffer extreme hardship if the benefit being sought is not granted. Extreme hardship can be financial, medical, emotional, or familial among other categories. Often LGBT identity can go a long way toward helping to establish this hardship.
The most obvious example, is if the immigrant's home country is hostile to LGBT persons or relationships. If the immigrant is married and his/her marriage will not be recognized in the home country, or worse, if LGBT persons are exposed to persecution, imprisonment, or death, that is clear hardship. Lack of protection from discrimination in the workplace, lack of parental rights, and lack of other civil rights are other clear indicators of hardship. But there are other angles to pursue as well. Many times, the immigrant's U.S. spouse has suffered substantial trauma in the process of coming out, past physical abuse, family alienation, and these are all things that create a psychological background that may be more "extreme" than in the typical scenario. Trans individuals may suffer disruption to their process of transition, HIV-positive individuals may face the loss of medical treatment, and the loss of an LGBT community and all that it represents may be at stake as well. One way or another, it is almost certain that LGBT identity will be helpful in meeting a hardship standard.