Protect LGBTQ and HIV-Positive Families and Refugees

a. Birthright Citizenship – After the Supreme Court overturned the Defense of Marriage Act, the Obama Administration worked closely with Immigration Equality to ensure that married same-sex couples would be treated the same as different-sex couples. However, there was at least one area of citizenship policy that required immediate reform. For children born abroad in wedlock, Section 301 of the Immigration and Nationality Act (INA) entitles parents to confer U.S. citizenship at birth to their children as long as (1) at least one of the parents is a U.S. citizen and (2) that parent fulfills certain residency requirements. For children born out of wedlock, a different section (INA Section 309) applies.

For years, the State Department treated the children of married same-sex U.S.-citizen parents born abroad as born “out-of-wedlock,” and then it denied that they were citizens. After we brought four lawsuits against the State Department (two in conjunction with Lambda Legal), the agency issued a press release in May 2021 indicating that they had updated their policy. They now acknowledge that “[c]hildren born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents…” While this is a positive step, and the State Department has formally acknowledged the citizenship of all of our plaintiffs, we still await the formal release of the policy and subsequent amendments to the Foreign Affairs Manual.

Solution: The State Department should immediately update the Foreign Affairs Manual to clarify that for married parents, the INA does not require a biological connection to a U.S. citizen in order for a parent to pass citizenship to a child.

b. Humanitarian Parole – Often, when an LGBTQ non-citizen is granted status in the United States, their partner is not statutorily eligible for derivative status because the couple comes from a nation without marriage equality.

Solution: The Department of Homeland Security (DHS) should grant humanitarian parole to the permanent partner of an immigrant who is ineligible to marry abroad. Humanitarian parole should be issued for the purpose of marrying in the United States. Then, DHS or the Justice Department (DOJ) should grant any derivative status the partner could have gotten had the couple been previously married nuc pro tunc.

c. Parole in Place – For many LGBTQ and HIV-positive people living in the United States, consular processing may be very dangerous or fundamentally unfair. First, nearly 70 nations make it a crime to be in a same-sex relationship, some of which carry the death penalty. Requiring an LGBTQ person to return to a country where they may be persecuted or tortured because of who they love is dangerous and unnecessary. Second, for people living with HIV, being asked to leave the U.S. for an extended period of time in order to consular process often interrupts an individual’s life-saving healthcare (see section immediately following). Third, because of the unconstitutional prohibition on same-sex marriage mandated by the Defense of Marriage Act, some foreign nationals were forced to enter the U.S. without inspection in order to keep their families together.

Solution: For individuals in one of the above categories, DHS should make parole in place an option in lieu of consular processing. This would ensure the health and safety of many LGBTQ and HIV-positive people, and help to right a long-standing civil rights violation created by the federal government.

d. Sputum Testing – In order to be eligible to adjust status, an applicant must provide proof that they do not have active tuberculosis. For most people, this involves a simple, rapid test. However, the State Department requires people living with HIV to undergo lengthy sputum testing. For individuals living in the U.S. who must consular process, this can be a substantial burden. Sometimes, sputum testing may take up to three months. At the same time, people living with HIV are often only allowed to take 30 days of HIV medication with them when they leave the U.S. And, if they consular process in a nation with little or no access to HIV care, there may be a substantial interruption in their HIV treatment. This could cause seriously negative consequences for the individual and for the public health. Furthermore, nations that lack robust HIV care can also often be nations where tuberculosis is common. And so, this policy inadvertently exposes people living with HIV to tuberculosis in order for them to prove that they do not have that disease.

Solution: As noted above, people living with HIV should be eligible for parole in place for adjustment of status. In the alternative, they should be able to obtain any necessary sputum testing in the United States before they leave the U.S. to consular process. The State Department should be instructed to accept domestic medical evidence as proof that someone does not have tuberculosis.

e. P-2 Refugee Processing for LGBTQ People – Over the years, Immigration Equality has heard from thousands of LGBTQ people who do not have the ability to flee a country where they fear persecution or torture. In nearly 70 nations, it is a crime to be an LGBTQ person. Furthermore, while refugee camps can be dangerous for many groups of people, they can be a death sentence for LGBTQ people.

Solution: Extend P-2 refugee processing to LGBTQ people in nations where reliable, State-Department-approved referral agencies already exist, and where those same agencies are able and eager to facilitate refugee referrals (such as in Russia). Create additional pilot programs in other nations where possible.

f. P-3 Refugee Processing for LGBTQ People – In almost all nations where LGBTQ people fear persecution and torture, marriage equality does not exist. Even if marriage equality is recognized on paper, it may be completely unavailable to most people.

Solution: The U.S. government should recognize the permanent partnerships of committed same-sex couples for the purposes of refugee resettlement.