One of the greatest challenges for immigration attorneys, advocates, and immigrants, is to find the immigration policy memoranda, and legal decisions which will affect the outcome of their cases. Here we provide information of particular interest to LGBTQ and HIV-positive foreign nationals and their representatives.
General LGBTQ Materials
In 2013 the Department of State added LGBTQ Travel Information to its website.
In 2009 USCIS had a “Listening Session” with the LGBTQ Community, including many questions posed by Immigration Equality. In 2010 USCIS put a “Listening Session with the LGBTQ Community” FAQ on their website which addresses some of the questions that Immigration Equality and other groups raised.
While not LGBT-specific this chart from the Social Security Administration lays out clearly which classes of visas require their holders to have an employment authorization document to work and which do not.
Couples Primary Source Materials
On June 26, 2013, the U.S. Supreme Court declared the Defense of Marriage Act unconstitutional in the case of United States v. Windsor. DOMA had been the only reason that lawfully married couples were barred from receiving federal immigration benefits. With the end of DOMA, same-sex married couples will be treated the same under the immigration law as different-sex married couples. Since then, the various agencies have issued further guidance on the issue.
On August 2, 2013, the Department of State put up a Frequently Asked Questions webpage entitled, U.S. Visas for Same-Sex Spouses. On the same day, it issued internal guidance, Next Steps on DOMA — Guidance for Posts which fills in some technical details on post-Windsor implementation.
In July 2013, the Board of Immigration Appeals issued its first post-DOMA decision In Re Zeleniak, 26 I&N Dec. 158 (BIA 2013). The Board reversed the denial of marriage-based benefits for a NJ couple who married in VT. Significantly, the decision listed a number of immigration benefits that flow to married couples as a result of DOMA’s end, and clarifies that for immigration purposes, the government looks to the place of celebration of the marriage to determine its validity.
Shortly after the Windsor decision, DHS put up FAQs about the decision’s implementation. They also indicated that further guidance would be forthcoming. On July 26, 2013, USCIS updated its early FAQs and added more information on a web page entitled Same-Sex Marriages. In August, the government also put out a one-page SEVIS document advising schools on how to update documentation for same-sex married couples through the SEVIS system.
Prior to the fall of DOMA, some guidance for LGBTQ couples already existed. On June 17, 2011, John Morton, the director of ICE issued a memo on prosecutorial discretion, outlining scenarios where it may be appropriate for ICE or USCIS to close removal proceedings or not begin them at all. In August 2011, ICE further announced that it would convene an inter-agency committee to review all 300,000 pending removal cases to determine which were low priority and should be closed. In various conversations with the press and the public, DHS made it clear that one of the favorable factors — family ties — would include LGBTQ families. DHS has put out an FAQ on the August 2011 announcement.
In November 2011, DHS issued further guidance for ICE attorneys on exercising discretion. It also offered guidance on implementing case by case review. Likewise, in November, USCIS issued a memo laying out criteria for when Notices to Appear initiating removal proceedings should be issued and when discretion should be employed. Finally, in October 2012, DHS issued written guidance clarifying that LGBTQ families are included in its definition of families for purposes of exercising discretion.
In 2011 the Attorney General issued a precedent decision In Re Dorman, 25 I&N Dec. 485 (A.G. 2011), in which he instructed the Board of Immigration Appeals to answer four questions concerning the application for cancellation of removal by a non-citizen. The questions included whether a NJ civil union would constitute a qualifying relationship under the INA and whether timing of the union would affect the outcome of the case.
Before the Supreme Court struck down DOMA, one of the only areas of U.S. immigration law which gaves any recognition to same sex couples, was the B visa which is available for co-habiting partners. The Department of State cable reconfirming the availability of this visa in a State Department cable issues by Colin Powell in Memo July 2001 . Subsequently DOS incorporated this language into the Foreign Affairs Manual 9 FAM 41.31 N14.4 C, page 25. On August 17, 2011, USCIS also finally issued a Policy Memorandum which issues guidance on how USCIS can adjudicate extension requests once a foreign national has entered the U.S. on a B visa as a co-habiting partner.
Another very limited area of recognition for lesbian and gay couples was for derivative diplomatic G visas. If the spouse or partner was considered immediate family under the laws of the sending country, he or she could receive a derivative G visa under DOS regulations which were issued in 2009.
Asylum Primary Source Materials
In January 2012, the U.S. Citizenship and Immigration Services released “Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims.” This training module has valuable information on the substantive law regarding LGBTQ asylum claims and information on how to sensitively elicit testimony on these types of cases.
The United Nations High Commissioner on Refugees has added a resources page on LGBTQ refugee law issues which is quite helpful.
On December 6, 2011, Secretary of State Hillary Clinton gave a historic speech reiterating the United States’ position that “gay rights are human rights and human rights are gay rights.” You can watch the speech here, or read it here. Additionally, on the same day, President Obama issued a memorandum entitled “International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual, and Transgender Persons” which, among other things, states the need to protect vulnerable LGBT asylum seekers and refugees.
A March 23, 2009 manual, used for training Asylum Officers, interprets the one year filing deadline and is a useful resource for evaluating possible exceptions to the deadline. See Asylum Officer Training – One Year Filing Deadline Lesson.pdf
This 2003 Memo clarifies USCIS’s position that asylees are not required to have employment authorization documents to work legally in the U.S. See March 10, 2003 Department of Justice Policy Memorandum (pdf).
Immigration issued a fact sheet in December 2006 about the dangers of asylees and asylee-based legal permanent residents traveling back to their home countries, see Fact Sheet (pdf).
Immigration Equality has drafted model guidance which we have used as a basis for training asylum adjudicators on LGBTQ asylum issues. Note: these are Immigration Equality training materials and cannot be cited as government-issued training. Immigration Equality Draft Model LGBT Asylum Guidance 2010 and Immigration Equality Draft Model LGBT Asylum Guidance 2004.
Individuals who are outside the U.S. may be able to seek refugee status through the United Nations High Commissioner on Refugees. UNHCR has published some materials on adjudicating LGBTI cases that can be useful in preparing U.S. asylum cases as well. These materials include: a UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity and Working with Lesbian, Gay, Bisexual, Transgender and Intersex Persons in Forced Displacement.
Transgender Primary Source Materials
On April 13, 2012 USCIS issued a Policy Memorandum updating its guidance on the adjudication of marriage-based petitions and gender correction on identity documents for transgender people. Significantly, the Memo does not require any particular type of surgery for USCIS to recognize gender correction. Instead, as with the DOS passport guidance, a certification from a doctor about the individual’s gender is sufficient.
Before USCIS issued its guidance, Immigration Equality and our allies at National Center for Transgender Equality sent a letter to USCIS urging it to update its policies on correcting gender markers on identity documents and to change its guidance which currently requires SRS to approve a marriage-based petition.
Although not directly related to immigration, this guidance from the federal Office of Personnel Management, clarifies that a marriage valid when entered into, remains valid for federal insurance coverage purposes, even if the transgender spouse subsequently transitions such so that the marriage becomes same sex. OPM Guidance
In June 2010, the Department of State revised its guidance on correcting gender on U.S. passports. The guidance requires medical documentation, but specifically states that proof of sex reassignment surgery is not a requirement. 2010 DOS Transgender Passport Guidance
In January 2009, USCIS amended its Adjudicator’s Field Manual (AFM) section 21.3(j) supposedly to reflect the Lovo-Lara holding, but it added a requirement that was not in Lovo-Lara that the transgender spouse must have had sex reassignment surgery.
In May 2005 the Board of Immigration Appeals issued a precedent decision finding that a marriage where one spouse was a post-operative transsexual was valid for immigration purposes where the marriage was valid in the state in which it was entered into. See Matter of Lovo-Lara Decision.
USCIS’s previous pre-2012 position on marriage-based petitions for legal permanent residence and on issuing immigration identity documents can be found here Yates’ Transgender Marriage Memo, April 04.pdf.
HIV Primary Source Materials
On January 4, 2010, HIV was removed from the list of “communicable diseases of public health significance” and thus is no longer a ground of inadmissibility. In early 2010 USCIS put out an FAQ on the end of the HIV ban.
In 1996, then INS issued a Memo stating that HIV positive status could be grounds to seek asylum and that Immigration should seek to grant discretionary relief to individuals who are HIV positive. That Memo is reproduced here: HIV Asylum Memo.pdf
Detention Primary Source Materials
On September 4, 2013 Immigration and Customs Enforcement released a directive which limits the use of segregation for ICE detainees generally and specifically includes protections for LGBTQ detainees.
DHS has issued two memos which state the preference that individuals who have won asylum or related forms of relief be released from detention. The first of these was issued on April 21, 2000 and the second on February 9, 2004.