USCIS Ends Discriminatory Policy Against Queer Families! The Agency Now Acknowledges Marriages of Same-Sex Couples and Their Right to Confer U.S. Birthright Citizenship to Their Children.

On May 18, 2021, the U.S. State Department ended its discriminatory policy of refusing to recognize the birthright citizenship of the children of many married same-sex couples born abroad. Similarly, on August 5, 2021, U.S. Citizenship and Immigration Services (“USCIS”) ended its equivalent domestic policy issuing new guidance which ensures, finally, that the rights of these families will be upheld and respected.

Under the prior policy, both USCIS and the State Department treated the children of same-sex married couples as “born out of wedlock,” despite the fact that they were born during the pendency of their parents’ marriage. As such, in assessing a child’s eligibility for birthright citizenship, they enforced a requirement, only applicable to children of unwed parents, requiring proof of the child’s biological connection to their U.S. citizen parent.  The unlawful and discriminatory policy resulted in the denial of countless citizenship applications of children of binational same-sex couples (i.e. in which one spouse is a U.S citizen and the other a foreign national) whose biological relationship was with their non-U.S. citizen parent.

With the policy change, children born abroad to married parents, at least one of whom is a U.S. citizen, are citizens at birth, if they have a biological relationship to any one of their parents. Children who meet these requirements and are applying outside the US will be issued a Consular Report of Birth Abroad by the State Department, while families that are currently in the US can obtain the domestic equivalent from USCIS, namely, a Certificate of Citizenship.

For USCIS’ full statement on the new policy, see here: https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210805-AssistedReproductiveTechnology.pdf.

For the State Department notice on its policy change, see here: https://www.state.gov/u-s-citizenship-transmission-and-assisted-reproductive-technology/.

USCIS has also updated its policy manual to reflect the new changes and, among other things, now defines “child” to include the child of a U.S. citizen parent who is married to the child’s genetic or legal gestational parent at the time of the child’s birth if both parents are recognized by the relevant jurisdiction as the child’s legal parents. A copy of USCIS’ updated manual can be found here: https://www.uscis.gov/policy-manual/updates.

Moreover, eligible children who had their applications for a Certificate of Citizenship previously wrongfully denied may file a motion to reopen or reconsider the denial.

Immigration Equality had been fighting this discriminatory policy for years filing the first of our lawsuits against the State Department in 2018, and is thrilled that both USCIS and the State Department have finally eliminated it. The elimination of the policy, while long overdue, is a victory for LGBTQ families and we celebrate with all of them.

Read more about foreign-born children of same-sex couples here.

Read Immigration Equality’s press release here.