Embarking on a journey to study abroad in the United States is an exciting opportunity. The U.S. is a top study-abroad destination, hosting more than one million international students each year, including an increasing number of Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (LGBTQI+) individuals. This article discusses how U.S. immigration law has evolved toward greater fairness for LGBTQI+ foreign nationals and the obstacles that remain for LGBTQI+ international students attending college or university in the country.
Evolution of U.S. Immigration Laws Impacting the LGBTQI+ Community
The U.S. immigration system has become increasingly supportive of LGBTQI+ foreign nationals, including international students. This evolution aligns with the shifts in societal attitudes and legal recognition in favor of LGBTQI+ rights and reflects the growing recognition of the unique vulnerabilities faced by LGBTQI+ individuals globally.
Significant Advancements in LGBTQI+-Related Immigration Laws and Policies
Pros:
Evolution of U.S. Immigration Laws Impacting the LGBTQI+ Community
The U.S. immigration system has become increasingly supportive of LGBTQI+ foreign nationals, including international students. This evolution aligns with the shifts in societal attitudes and legal recognition in favor of LGBTQI+ rights and reflects the growing recognition of the unique vulnerabilities faced by LGBTQI+ individuals globally.
Significant Advancements in LGBTQI+-Related Immigration Laws and Policies
- 1952 – 1990: The Immigration and Nationality Act (INA) previously allowed for the exclusion and deportation of LGBTQI+ international students. Before 1990, foreign nationals who were members of the gay community were deemed inadmissible to the U.S. under a provision of the INA that banned the admission of foreign nationals considered “afflicted with a psychopathic personality, sexual deviation or mental defect.” The Immigration Act of 1990 removed this ground of inadmissibility, ceasing the exclusion based on LGBTQI+ status.
- 1987 – 2010: In 1987, the U.S. Congress included Human Immunodeficiency Virus (HIV) on the list of communicable diseases that rendered foreign nationals, including international students, ineligible for admission to the U.S. This policy disproportionately excluded gay males. In 2010, the Department of Health and Human Services (HHS) removed HIV infection from the list of excludable medical conditions, making foreign nationals eligible for U.S. visas, green cards, and asylum regardless of HIV status.
- 1994: U.S. law recognized LGBTQI+ status as a basis for asylum protection. In 1990, the Board of Immigration Appeals (BIA) granted asylum to a gay man due to persecution because of his “membership in a particular social group.” In 1994, the U.S. Attorney General designated this decision as a binding precedent for immigration courts. Subsequent rulings and policy changes further strengthened protections for LGBTQI+ asylum seekers. In 2011, USCIS recognized persecution due to sexual orientation or gender identity as a valid basis for asylum claims. Waivers are also available for J-1 exchange visitors facing persecution in their home country.
- 2013: Same-sex partners became eligible for marriage-based benefits, including immigration benefits, following the U.S. Supreme Court's decisions in United States v. Windsor and Obergefell v. Hodges. Same-sex spouses of LGBTQI+ international students are now eligible for dependent spouse immigration benefits, including F-2 or J-2 dependent visas, and can apply for U.S. permanent residency if the marriage was performed in a country recognizing same-sex marriage.
- 2023: USCIS updated its policy to allow applicants to self-select any gender marker on their U.S. immigration paperwork, regardless of prior documentation. This provides international students with the opportunity to obtain immigration and identity documents that accurately reflect their gender identity.
- Nonimmigrant Visas for Temporary Workers: LGBTQI+ international students working in professional occupations related to their degree and sponsored by eligible cap-exempt U.S. employers may qualify for Cap-Exempt H-1B Specialty Occupation status. LGBTQI+ entrepreneurs and experts may be eligible for the O-1 Extraordinary Ability visa.
- Employment-Based and Self-Petition Green Cards: LGBTQI+ international students may be eligible for the EB-1 Extraordinary Ability or EB-1 Outstanding Researcher green card categories. They may also qualify for the EB-2 National Interest Waiver if they have an advanced degree or exceptional ability in a field considered in the national interest, potentially including LGBTQI+ work.
- Gender Selection on Immigration Applications: Unlike USCIS, the Department of State (DOS) has not updated its policy regarding gender markers. Students applying for visa stamps at a U.S. Embassy or Consulate must present documentation aligning with the gender selected on their visa application (DS-160).
- Gender Markers on Immigration Forms: USCIS is working to include a third gender identifier (X) on immigration application forms. Until implemented, students must select either Male or Female.
- Unmarried Same-Sex Partners: The U.S. does not recognize civil or domestic partnerships for derivative immigration benefits. Unmarried same-sex partners must consider other immigration options, such as their own student visa or an employment-based visa.
- Local Conditions: Attitudes, laws, and policies toward sexual orientation and gender identity vary by institution, state, and city. LGBTQI+ international students should consider local conditions when selecting an academic institution or employer in the U.S.
Pros:
- Evolving supportive U.S. immigration policies for LGBTQI+ individuals.
- Availability of various visa and green card options for LGBTQI+ international students.
- Legal recognition of same-sex marriages for immigration benefits.
- Inconsistent gender marker policies between USCIS and DOS.
- Lack of recognition for unmarried same-sex partners in immigration benefits.
- Varying local conditions regarding LGBTQI+ rights and protections.
Great question, Vivienne! Unmarried same-sex partners don't get derivative immigration benefits, so they might need to look into student visas or employment-based visas on their own. 
