Tips for the LGBT Community on Immigration Matters post-2016 Elections



Tips for the LGBT Community on Immigration Matters post-2016 Elections

Prepared from information provided by the LGBT Committee of the MN/Dakotas chapter of the American Immigration Lawyers Association.

Marriage equality is the law of the land. The Supreme Court is unlikely to reconsider the Windsor and Ogbergefell decisions that grant the right to marry to same-sex couples. At least not right away, although this may change in the future.  The following tips provide suggestions that may help you prepare for future changes in the law.

Please note:  These tips are not intended as legal advice.  They provide general information, but do not substitute for legal advice from an experienced immigration lawyer who is familiar with the facts of your case. To be sure that you are eligible to file an immigration application, we strongly recommend that you schedule an appointment for a consultation with an experienced immigration lawyer before you file.

  1. Consider legal marriage as something that is distinct from wedding planning. This means, if you are planning to marry, you may want to consider getting legally married as soon as possible in a civil marriage ceremony. You may chose to hold religious ceremonies, or other celebrations later.  If marriage equality goes away, it will most likely begin with denying the right to those who are not yet married.
  1. If you are not married, or if marriage protections are taken away from same-sex couples, consider the following non-marriage protections:
  •  Power of attorney for finances
  •  Power of attorney for health care
  •  Designation of beneficiaries on insurance, 401(k) and other policies
  •  Update your will to ensure your spouse has a legal claim to your assets
  1. If you are a same-sex couple with children, consider co-parent adoptions to ensure joint parental rights.
  1. If you are a married bi-national same sex couple, consider what your immigration options are in the country of the non-US citizen or non-US permanent resident spouse.
  1. Most petitions and applications for immigration benefits are decided under the law in place at the time of filing.  You may want to consider filing any of the following as soon as you possibly can. Make sure that you are eligible before you apply:
  • I-130 petitions based on marriage to a US citizen or Green Card holder.
  • Applications to extend your status, especially if your status is based on your
  • Marriage (including, but not limited to, F-2, J-2, H-4, L-2, etc.)
  • Adjustment of status (Green Card) applications based on your marriage
  1. If you have a Green Card and you are married to a US citizen, consider filing for naturalization as soon as you are eligible. You must be a green card holder for at least three years if you are married to the US citizen who sponsored you for your Green Card. Make sure that you are eligible for naturalization before you apply.
  1. If you filed for immigration benefits under DACA, this program is likely to end. DACA benefits do not provide protection other than a temporary stay of removal and temporary permission to work in the US.
  1. Be aware of “notarios” and other non-lawyer immigration service providers. Many are well-intentioned, but others are not. If you apply for something that you are not eligible for, or you file an application that contains inaccurate, or false information, your application may be denied.  Even worse, you may not be able to file immigration applications in the future.

Please contact us at  or 315-333-2424, if you would like to schedule an appointment for an immigration consultation with an attorney in our office. You may also contact us at