Immigration: Challenges that Same-Sex Couples have faced in the Last Century

Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) Pride Month is now celebrated in the United States each year during the month of June. Although same-sex married couples enjoy equal protections under the law nowadays, LGBTQ communities have historically faced enormous immigration difficulties in the United States over the last century. In earlier eras, an individual’s private and sexual preferences were questioned when trying to immigrate or enter to the country. Often, immigration officers would question foreign nationals based on how they were dressed and the first-sight impressions they had when interacting with them. 

In this blog post, we give an overview of the legal history relating to treatment of same-sex couples in the United States. It wasn’t until 2013 that same-sex marriages were recognized under the federal law and thus valid for immigration purposes as well. We will also discuss how Garvish Immigration Law Group assists same-sex couples in their immigration journeys.

Background

Since 1917, LGBTQ individuals were prevented from entering the United States as they were considered “mentally or physically defective.” Furthermore, in the Immigration and Nationality Act (INA) of 1952, homosexuals were declared inadmissible for having a “psychopathic personality.” Many cases decided by the Board of Immigration Appeal reflect the hardships that these individuals were facing during the 1950s and the 1960s, such as Matter of R—-, 9 I&N Dec. 393 (B.I.A. 1961), Matter of Lavoie, 11 I&N Dec. 224 (B.I.A. 1965), Quiroz v Nelly (1961), amongst others. In Matter of R—-, 9 I&N Dec. 393 (B.I.A. 1961), a citizen of Germany was charged with homosexual “exhibitionism” and therefore ordered excludable from the United States.

lgbtq month immigration deportation

[Fraction of Decision of Matter of R—-, 9 I&N Dec. 393 (B.I.A. 1961)]

The INA of 1965 explicitly introduced, for the first time in immigration policy, the term “sexual deviate” as being a medical condition that would prevent gay or lesbian foreign nationals from entering the country. The immigration law continued to deny legal status to gay and lesbian individuals for decades, until 1994 in Matter of Toboso-Alfonso when a Cuban citizen was granted asylum in the United States as he was persecuted in his home country due to his sexual orientation. 

Despite this victory for the LGBTQ community in the immigration context, in 1996, the U.S. Congress strengthened anti-homosexual laws by passing the Defense of Marriage Act (DOMA), which was signed into law by President Bill Clinton on September 21, 1996. This law defined a legal marriage as only between partners of opposite sex. Furthermore, this law authorized states to deny recognition to same-sex marriages performed out-of-state. As result, the DOMA prevented same-sex couples from enjoying the same federal protections and benefits as any other married couple, such as the right to inheritance, the right to file taxes jointly, the right to apply for immigration benefits, amongst many others. 

The beginning of immigration rights for same-sex spouses

The turning point for same-sex marriage rights took place in 2013 after the Supreme Court found DOMA to be unconstitutional “as deprivation of the liberty of the person protected by the 5th amendment.” United States v. Windsor (2013). Less than a month later, President Barack Obama directed all federal agencies and departments to ensure and provide benefits to same-sex married couples the same as opposite-sex married couples. Indeed, on June 13, 2013, Secretary of Homeland Security Janet Napolitano ordered effective immediately, USCIS to consider same-sex marriages as legally valid for immigration purposes. 

Garvish Immigration Law Group’s Involvement in Same-Sex Marriage Immigration

Since 2013, Garvish Immigration Law Group has represented many same-sex couples in their immigration journeys. Due to this outstanding change in federal policy, we have been able to represent same-sex couples in family-based petitions where a U.S. Citizen or Permanent resident petitions for his or her same-sex spouse. Indeed, if you are seeking to file a petition on behalf of your spouse and you are a U.S. Citizen or Permanent Resident, contact our team of immigration experts here. Furthermore, if you employ, or seek to employ, a foreign national who is married to a same-sex partner, we can assist you in petitioning for a work visa for your employee and his or her spouse. Click here to learn more about employment-based visas.

Our lawyers have decades of experience and have seen the changes in benefits and rights for same-sex partners who are interested in immigrating to the United States. In the following video, Elizabeth talks about one important win we had when representing a same-sex couple in our practice. In this case, we represented a veteran who served in the U.S. armed forces to petition for his husband. During the process, we managed to get a Parole in Place approved, the I-130 Immigrant Visa petition approved, and ultimately the green card approved after a difficult interview with a very stern USCIS Officer.

Elizabeth Garvish appeared telephonically during the USCIS interview in which the Officer was inquiring about the lack of pictures with the couple’s family members. We explained to the officer that the couple’s families did not accept their marriage as they were a same-sex couple. After an earnest and emotional conversation with the officer, explaining the difficulties same-sex couples face even from their immediate family members, he approved our client’s green card on the spot!

Mercedes Benites
Mercedes BenitesMarketing Assistant
Mercedes Benites is a Legislative Assistant for the Georgia State Senate. She also assists Garvish Immigration with weekly and monthly marketing projects.