Depending on where they live, life for LGBTQ+ individuals can be either liberating or extremely difficult. While some countries are accepting, far too many others haven’t, exposing them to the risk of persecution. Fortunately, several immigration pathways offer the potential for protection and the opportunity to build a safer life in the United States. If you are facing discrimination, violence, or criminalization based on your sexual orientation or gender identity, knowing what these options are and how to access them is critical.
- Asylum: The United States, as well as Canada and several European nations, explicitly recognize LGBTQ+ status as grounds for asylum protection, but meeting the required burden of proof can be challenging. Applicants are often asked to provide evidence of their sexual orientation or gender identity as well as of the dangers they face or demonstrate that they’ve faced persecution due to their sexual orientation or gender identity, or have a well-founded fear of it. Asylum protection specifically applies to those already in the United States who can’t return home safely. The process requires highly specific documentation of threats or evidence of discriminatory conditions in your home country. Personal testimony about experiences of persecution may also be necessary.
- Refugee Status: The U.S. Refugee Admissions Program allows LGBTQ+ individuals to apply for protection before arriving in America. Applicants must be outside the United States and demonstrate either persecution or a well-founded fear of persecution. The process begins with a referral to the U.S. Refugee Admissions Program, typically through the United Nations High Commissioner for Refugees, an embassy, or a non-governmental organization.
Refugee status provides immediate work authorization and a pathway to permanent residence after one year. The program includes resettlement assistance through local organizations that help with housing, employment, and community integration.
- Family-Based Immigration: LGBTQ+ individuals can pursue family-based immigration if they have qualifying relationships with U.S. citizens or permanent residents. Same-sex marriages are federally recognized, allowing U.S. citizens to petition for their foreign spouses through the I-130 process.
If you aren’t married to your partner, family-based immigration may not apply, but you may still qualify for asylum or other protections. Adult children of U.S. citizens and siblings, can also qualify for family-based visas, though processing times have been very long in the last few years.
- Withholding of Removal and CAT Protection: If you don’t qualify for asylum and you’re in removal proceedings, withholding of removal offers protection from having to return to countries where you’ll face persecution. The standard of proof for this option is higher than for seeking asylum, and requires you to demonstrate a clear probability of persecution rather than simply a well-founded fear.
Convention Against Torture (CAT) protection applies to those who face or have faced torture in their home countries, regardless of the reason. Though this protection doesn’t provide a path to permanent residence, it does prevent removal to countries where torture is likely.
LGBTQ+ immigration cases are both sensitive and complex, especially because of all the legal requirements involved. Our immigration attorneys have deep knowledge and experience in LGBTQ+ immigration and understand its unique challenges. For information on how we can help, contact us today to set up a time for us to speak.