Same-Sex Immigration and Visas
Legally married same-sex spouses can apply for the same immigration benefits as opposite-sex spouses if the marriage was performed in the United States or country where it is legally recognized.
In June 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. In June 2015, the Supreme Court ruled that same-sex couples can marry nationwide. The Department of State, which is responsible for the US Embassies and Consulates abroad, will issue derivative visas (F2, J2, etc.) for legally married same-sex spouses and minor children. The Department of Homeland Security which oversees the immigration services inside the US has also stated that legally married same-sex spouses can apply for the same immigration benefits as opposite-sex spouses if the marriage was performed in a state or country where it is legally recognized. (This means that even if you currently reside in a state that does not recognize your marriage, if the marriage was performed where it is legal, the federal government will recognize it for immigration purposes.) If a US citizen (or US Permanent Resident) wants to sponsor her/his same-sex spouse for legal permanent residence, s/he can do so. For more information: https://www.dhs.gov/topic/implementation-supreme-court-ruling-defense-marriage-act
We recognize the unique immigration challenges facing LGBTQ international students who wish to bring their partner or their partner’s children to the U.S. but have not had the opportunity to legally marry. While your unmarried partner and his/her children, under current immigration law, are ineligible for F-2 or J-2 status, there may be alternative routes to help your partner accompany you to the United States. This might include having your partner utilize B2 visitor visas, find employer sponsorship for an H-1B, or looking at other potential work visas. Our office is able to give advice and information on applying for an extended B2 visitor visa. For work visas, we recommend you consult the advice of experienced immigration lawyers who have worked with LGBTQ internationals for the best guidance for your specific situation.
From Office of the High Commissioner for Human Rights. About LGBT rights as basic human rights.
International Blogs and Articles
Immigration International Resources
We recognize the unique immigration challenges and barriers facing LGBTQ international students who wish to bring their partner or their partner’s children to the U.S. during their time as F-1 or J-1 students. While your partner and his/her children, under current immigration law, are ineligible for F-2 or J-2 status, there may be alternative routes to help your partner accompany you to the United States. This might include having your partner utilize B2 visitor visas, find employer sponsorship for an H-1B, or looking at other potential work visas. Our office is able to give advice and information on applying for an extended B2 visitor visa. For work visas, we are unable to provided detailed assistance and recommend you consult the advice of experienced immigration lawyers who have worked with LGBTQ internationals for the best guidance for your specific situation.
For helpful information on immigration for LGBT individuals, visit the following link:
GLAD (Gay and Lesbian Advocates and Defenders)
For information on immigration, transgender issues, binational couples, and seeking asylum due to your
sexual orientation or gender identity, visit Immigration Equality’s website:
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B2 Extended Visitor Visas for same-sex partners of F1/J1 students
Under current federal immigration law, same-sex married couples are eligible for dependent F2/J2 status. However, unmarried partners (same-sex and opposite-sex) are not eligible for dependent F2/J2 status,
However, for same-sex partners, B-2 visitor visas may be issued for extended periods of time for life partners whose primary purpose in coming to the U.S. is to accompany the F1/J1 visa holder and who are otherwise eligible for a visa and do not intend to work. According to DOS cable 2001 State 118790 July, 2001). AMDOC# 200206011, the B-2 classification can be available “for both opposite and same-sex partners. . . in increments of up to six months, for the duration of the principal alien’s nonimmigrant status in the United States.”
Summary of cable: http://travel.state.gov/visa/laws/telegrams/telegrams_1414.html
For additional information on applying for the extended B2 visa, contact ISS at email@example.com. Visit us during our walk-in advising hours for an advisor to assist you and/or your partner with the process. ISS is able to provide a letter of support for your life partner’s application for the extended visa.
Can same-sex partners of US citizens apply for the extended B2 visa?
To our knowledge, it is likely that same-sex partners of US citizens would encounter great difficulty in obtaining the extended B2 visa for several reasons. Ties to home country might be more questionable and intent to immigrate would be presumably higher. According to the DOS cable, the B-2 visa extension is an option for partners of F1/J1’s “for the duration of the principal alien’s nonimmigrant status,” primarily because there is a fixed end to the F1/J1 student status. A US citizen does not have “alien nonimmigrant status” with a fixed end to his/her status, so there would be no foreseeable end to the B2 visa extensions. If you are a graduating F1/J1 student with a US citizen partner, you will need to consider alternative options such as OPT, H1B or marriage.
Can boyfriends/girlfriends of F1/J1 students apply for B2 extensions? Can elderly parents apply?
Sometimes. In general, boyfriends/girlfriends will not meet the requirements. The extended B-2 visa for cohabitating partners (same-sex or opposite-sex) is meant for life partners for whom dependent status is not an option due to immigration law or extenuating circumstances. Strength of relationship is one factor the consulate and USCIS will consider.
In some circumstances, elderly parents, cohabitating nonimmigrant partners (opposite sex or same sex), and other household members of principal nonimmigrants (F1/J1) may be eligible for F2/J2 status. In these circumstances, B-2 visa extensions can often be appropriate for these household members. USCIS will consider extensions of B-2 Status for nonimmigrants “with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members.”
See USCIS August 2011 Memorandum: http://www.uscis.gov/USCIS/Laws/Memoranda/2011/August/Cohabitating_Partners_PM_081711.pdf
However, B-2 visitor visas may be issued for extended periods of time for life partners whose primary purpose in coming to the U.S. is to accompany the F1/J1 visa holder and who are otherwise eligible for a visa and do not intend to work. According to DOS cable 2001 State 118790 July, 2001, AMDOC# 200206011, the B-2 classification can be available “for both opposite and same-sex partners. . . in increments of up to six months, for the duration of the principal alien’s nonimmigrant status in the United States.”
Summary of August 2011 USCIS Policy Memorandum on B-2 Status extensions: http://www.uscis.gov/USCIS/Laws/Memoranda/2011/August/Cohabitating_Partners_PM_081711
How long can the partner remain on the B-2 visitor visa? Isn’t it a violation of the B-2 visa?
“Though B-2 visits are usually for short periods of time, it is permissible for the accompanying partner to intend to accompany the principal for the duration of the work assignment or study program in the U.S., such as 3 years on an H1B. The accompanying partner must intend to depart at the conclusion of the principal’s authorized stay in the U.S. In such cases there is a fixed end point, and therefore the B-2 applicant meets the requirement of temporary intent, even though s/he intends to stay longer than 6 months or a year.
Please note that, as with all B-2 applicants, it is still possible to be denied based upon abandonment of one’s foreign residence. Therefore, it is still necessary to document thoroughly one’s ties to the home country, to show that one will return at the conclusion of the principal’s stay. The cable notes that the strength and duration of the relationship will be a key point in this context; if the commitment is strong, presumably the couple will return home together. Please note that the B-2 applicant is subject to this ‘residence abroad’ requirement even if the principal may be in a category that does not have this requirement.
One obvious question that may arise is how a B-2 visa holder can stay for an extended period of time, when normally at the Port of Entry a B-2 is given a stay of six months. The cable suggests that an annotation be placed on the partner’s visa, to encourage the USCIS inspector to grant the maximum initial period of stay, which on a B-2 would be one year. An annotation on a visa is a brief note explaining the purpose of the travel, so in this situation it may say something like “accompany F-1 student [name of principal].” (The cable does not provide an example of an annotation.) Also, it is important for the B-2 partner to apply for extension/s of stay in the U.S., and the cable instructs Consular Officers to remind the applicant of this requirement.”
Retrieved May 2, 2011.
Asylum International Resources
We understand that for some individuals, returning to your home country as an LGBTQ individual may pose certain risks and dangers, and in some extreme cases, real threats of violence or death. It is very difficult to obtain asylum due to sexual orientation. However, we do know that individuals from certain countries have been successful at obtaining asylum. In some cases, individuals have been granted asylum from countries in which homosexuality is legal, such as Poland, where threats and actions targeted at an LGBTQ individual were deemed serious enough to warrant asylum.
The most helpful information we have found on the asylum process can be found on Immigration Equality’s website under their Asylum tab:
We do not have expertise in the asylum process and are unable to give detailed advice on this process. We recommend consulting the advice and guidance of an experienced immigration lawyer who has worked with asylum cases. While we cannot offer legal advice or recommend specific lawyers, we can offer a listening ear and share what we do know. You may visit an ISS advisor during walk-in advising.
If you have information that could be helpful to others in this situation, we’d like to know. Finding, supporting, and coping with others in similar situations can help you examine options, gain perspective, and find hope in a challenging situation. Please share helpful information with our office by email: firstname.lastname@example.org, by phone: 608-262-3468, or in person.
Talking helps… UW’s University Health Care (UHS), while also not able to provide any legal advice, does offer counseling to students to help you cope with the stresses and challenges in all areas of your life. If you would like to talk to a professional counselor at UHS about your concerns or anxieties about returning home, call (608) 265-5600.
As seeking asylum can be a very lengthy, often stressful and uncertain process, you might consider alternative routes to remaining in the United States either temporarily or permanently. You might consider applying for OPT (Optional Practical Training) and seeking employment with a business willing to sponsor you for an H-1B Visa which could lead to options to gain permanent residency.
LGBTQ-Specific International Resources
Gays Without Borders
Human Rights Watch GLBT Issues Commission
International Association of Lesbian & Gay Children of Holocaust Survivors
International Gay & Lesbian Human Rights Commission
International Gay & Lesbian Travel Association (IGLTA)
International GLBTQ Youth & Student Organization (IGLYO)
International Lesbian & Gay Association (ILGA)
International Lesbian & Gay Cultural Network (ILGCN)
International Resources for Transsexual People
Lesbian & Gay Hospitality Exchange International (L/GHEI)
OutFront: Amesty International’s LGBT Human Rights Commission
Rainbow Educators Network
Rainbow World Fund
World OUT Games
LGBTQ International Research
LGBTQ Abroad: Study/Travel Abroad Resources
Thinking of studying abroad? Whether you are a domestic student or an international student hoping to experience another culture during your time at UW-Madison, studying abroad and traveling internationally can enrich and broaden your university and life experience.
The following list provides resources to help you understand the LGBT climate of various regions and countries for students exploring study abroad or traveling options. Talking with a study abroad advisor and asking yourself questions about what you’re hoping to gain from a study abroad opportunity can help you decide where to go. Consider also what you need to feel safe, the level to which you want to be ‘out’ during your time abroad, and how you will negotiate different cultural norms and expectations around expressing sexuality and gender. Gathering information and doing a little preparation beforehand can help you make the most of your time abroad.
International and Academic Programs at UW-Madison
Amnesty International Outfront
Choose any country on this interactive map to see the laws and general climate for LGBTQ individuals in that country. A great resource!
ILGA is an international organization of groups to promote equal rights for LGBT populations. Country profiles and articles about legal and political LGBT events are available on this website.
Provides links to international LGBT networks, articles, and other resources for LGBT study abroad participants.