After the election of Donald Trump, many of you contacted Immigration Equality with deep concern for yourselves and for your families. We hear you. We are concerned too. But there are certain things a president cannot do, at least not without an Act of Congress. Below are our conclusions about what you may expect.
We would like to make a few important notes that apply to everyone regardless of their immigration situation. First, Mr. Trump has repeatedly noted that he intends to prioritize any immigrant with a criminal history for deportation. While previous administrations waived certain minor crimes (like jumping the subway turnstile), Mr. Trump has not yet described whether all crimes or just “serious” crimes would render someone a priority for deportation. Regardless, if you have ever had a negative interaction with law enforcement, you should consult with an immigration attorney before filing any kind of immigration paperwork. This is especially so if you have ever been convicted, fined, arrested, or detained.
Second, please note that regardless of the election, as of December 23, 2016, the application fees for many immigration forms will be increased substantially. You can review the current and the future fees here: https://www.uscis.gov/fees.
Finally, Immigration Equality has contacts with hundreds of private and pro bono attorneys throughout the United States. If you would like an LGBTQ-friendly attorney referral, you may ask for one at: http://www.immigrationequality.org/get-legal-help/#contactform. Please note that our free legal services are offered only to individuals who cannot afford an attorney. If you can afford an attorney, we are happy to provide you with a local immigration lawyer who has indicated to us that they are LGBTQ-friendly.
Frequently Asked Questions
Will having a new president affect my marriage?
The marriage battles that we have won over the last ten years are unlikely to be overturned under a new administration. The Supreme Court issued two landmark decisions recognizing the rights of same-sex couples to marry in 2013 and 2015. While the Supreme Court occasionally overrules itself, it does so sparingly and generally only after a very long time has passed. Still, with at least one position open on the Supreme Court, and many more positions open in the federal judiciary, Mr. Trump will likely be able to nominate very conservative judges. As such, it seems probable that anti-marriage advocates will bring cases to try and chip away at marriage equality. Even if this is the case, sponsorship of a same-sex spouse for immigration benefits should remain an option absent a substantial, unconstitutional shift of power in the federal government.
Will having a new president affect my asylum case?
The opportunity to file for asylum in the United States has its origins in decades-old international treaties. These in turn were promulgated into statute by Congress many years ago. No president can change a statute without the help of Congress. Therefore, a new president cannot eliminate the asylum system altogether. Similarly, it seems probable that the United States will continue to protect asylum seekers on the basis of sexual orientation and gender identity. However, presidents have a great deal of say about how the asylum system operates. Mr. Trump may well make it much harder to obtain asylum or delay asylum cases even more than they are now. At the same time, it may also be that the new administration does not change the asylum system at all.
You may be tempted to try to expedite your asylum case before the end of the Obama Administration. While all asylum offices have procedures to speed up cases for people with true emergencies, a fear of a Trump Presidency will not be considered to be an emergency. Please also note that many, many asylum seekers may be trying to expedite their claims too.
Will having a new president affect my family-based green card case?
Congress created the laws that allow someone to sponsor a family member for a green card. No president can change a statute without the help of Congress. Therefore, a new president cannot eliminate the green card system altogether. Nevertheless, a president has a lot of say about how the green card system operates. While Mr. Trump has spoken a great deal about immigration, he has not directly addressed the family-based green card system. For now, we assume that the procedures will continue to operate in roughly the same way. However, if you entered the United States without permission, and you’re seeking to apply for a family-based green card, you should speak to an attorney before filing any papers.
Should I apply for my green card or for naturalization?
If you are eligible for a green card or to become a citizen, yes, you should do so promptly. Please note that if you filed today, you would likely not receive a decision from the U.S. government until after Mr. Trump has taken office. Nevertheless, becoming a permanent resident or a citizen substantially increases your security to live in America. You may wish to contact an attorney for a consultation if you are unsure of what to do next. Again, if you have any criminal history of any kind, if you have ever filed incomplete or inaccurate immigration or visa papers in the past, or if you came to the U.S. without permission, you should consult with an attorney before filing any paperwork.
Will having a new president affect my DACA status?
Deferred Action for Childhood Arrivals (DACA) is a program created by President Obama in 2012. “Deferred action” has been a tool that many presidents, both Democrats and Republicans, have used for years to prevent certain immigrants from being deported. Through an executive order, President Obama began a program of deferred action for immigrant children brought to the U.S. when they were very young. Mr. Trump indicated during his campaign that he would rescind DACA. So far, he has been consistent in that pledge. However, politicians often take a position on a campaign trail that changes after they take office. At the same time, advocates may well attempt to protect DACA through litigation.
Nevertheless, you should plan for and expect changes in DACA. Mr. Trump could cancel DACA and rescind the work authorization of those who currently have deferred action. Or, he may cancel the program, but allow those with DACA to continue with their status until it expires. Because there are more than one scenario that may play out, you should consult with an immigration attorney if you have DACA or if you are considering applying for DACA. We also strongly recommend speaking to an attorney to determine whether you have any other immigration options. You should not rely on DACA as a long-term immigration status.
Many of you have also expressed concern that you may be targeted for deportation if your DACA is revoked. We are concerned too. So far, Mr. Trump has not stated that he will target individuals who once had DACA. But of course, not knowing what might happen provides very little consolation to those who are about to be forced back into the shadows. Regardless of what happens, we stand with the Dreamers. And, we will fight every day to ensure your right to live in America without fear.
Will having a new president affect my ability to change my gender identity documents?
Mr. Trump has not specifically indicated that he will reverse the name and gender policies of any agencies. Nevertheless, you should update your documents now if you can. You can find the State Department’s current gender marker policy here: https://travel.state.gov/content/passports/en/passports/information/gender.html. Homeland Security’s policy is here: https://www.uscis.gov/sites/default/files/USCIS/Outreach/Feedback%20Opportunities/Interim%20Guidance%20for%20Comment/Transgender_FINAL.pdf
Will having a new president affect my immigration case if I am a person living with HIV?
Mr. Trump has not specifically mentioned people living with HIV in the immigration context. The previous immigration and travel ban for people living with HIV was statutory, and overturned by Congress in 2010. It seems very unlikely that such a ban would be reinstituted.
What do I do if immigration agents come to my home?
If Immigration agents come to your home and ask you if they can come in, tell them “no.” No one can enter your home without permission unless they have a search or arrest warrant signed by a judge. If an officer informs you that they have a warrant, ask them to slip it under your door. Read it carefully. Immigration officers often have papers that look very official but are not judicial warrants. Please also note that immigration agents often come to a person’s home very early in the morning and claim to be the police. If someone says that they are a police officer, ask to see their badge. Look closely at the badge for the word “police” as many immigration officers also have badges. Please also note that the police also cannot enter your home without a judicial warrant.