International Student Pride: Immigration for LGBTQI+ International Students

Embarking on a journey to study abroad in the United States is an exciting opportunity. The U.S. is a top study-abroad destination for students, hosting more than one million international students each year. This includes an increasing number of Lesbian, Gay, Bisexual, Transgender, Queer and Intersex (LGBTQI+) international students.

This blog post 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.

Below is a timeline of the most significant advancements in LGBTQI+-related immigration laws and policies impacting international students in the U.S.:

• • • 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 who were considered to be “afflicted with a psychopathic personality, sexual deviation or mental defect.” The Immigration Act of 1990, however, removed this ground of inadmissibility from the law, and with the passage of this legislation, members of the LGBTQI+ community ceased being subject to inadmissibility based on their status.
    • 1987 – 2010: In 1987, the US Congress enacted legislation mandating that Human Immunodeficiency Virus (HIV) be included on the list of communicable diseases that render a foreign national excludable from the country, making HIV+ foreign nationals, including international students, ineligible for admission to the U.S. on health-related grounds. This policy disproportionately excluded gay males. Following changes in the law, the US Department of Health and Human Services (HHS) subsequently removed HIV infection from the list of excludable medical conditions effective in 2010, thereby making foreign nationals, including international students, eligible for US visas, green cards and asylum regardless of their HIV status.  
    • 1994: U.S. law broadly recognized LGBTQI+ status as a basis for asylum protection for the first time. In 1990, the Board of Immigration Appeals (BIA) in Matter of Toboso-Alfonso granted asylum to a gay man due to persecution he suffered because of his “membership in a particular social group” (the gay community), and in 1994, the US Attorney General designated this decision as a binding precedent for immigration courts. Subsequent court rulings and policy changes have further strengthened protections for LGBTQI+ asylum seekers. In 2011, the U.S. Citizenship and Immigrant Service (USCIS) issued internal training guidance to its adjudicators explicitly recognizing that persecution due to sexual orientation or gender identity could be a valid basis for asylum claims. Similarly, waivers are available for fear of persecution in one’s home country (as well as several other grounds) for J-1 exchange visitors who are subject to a two-year home residency requirement that would otherwise limit their eligibility to work in the U.S. under certain work visa categories or to apply for U.S. permanent residence following the completion of their degree program.
    • 2013: Before 2013, same-sex partners were not eligible for marriage-based benefits, including immigration benefits. This changed when the U.S. Supreme Court struck down the Defense of Marriage Act (DOMA), which had previously defined marriage for federal purposes as between one man and one woman, in United States v. Windsor (2013), and guaranteed same-sex marriage as a fundamental right under the U.S. Constitution in Obergefell v. Hodges (2015). Same-sex spouses of LGBTQI+ international students are now eligible for dependent spouse immigration benefits, including F-2 or J-2 dependent visas, if the marriage was performed in the U.S. or in a foreign country that recognizes same-sex marriage. Moreover, same-sex spouses of U.S. citizens and Lawful Permanent Residents (“green card” holders) who marry in the U.S. or in a foreign country that recognizes same-sex marriage may apply for U.S. permanent residency on that basis. LGBTQI+ international students who subsequently seek U.S. permanent residence can either apply for Adjustment of Status while in the country or apply for an immigrant visa at a U.S. embassy or consulate outside the U.S.

• • • 2023: USCIS updated its policy to allow applicants to self-select any gender marker on their U.S. immigration paperwork, regardless of the gender marker indicated on their prior applications or supporting documentation. For example, although an international student’s passport may list F (Female), they may select Male (M) when completing immigration forms filed with USCIS, including Forms I-765 (Application for Employment Authorization) for F-1 Optional Practical Training (OPT) for international students and I-589 (Application for Asylum) for asylum seekers. This flexibility provides international students with the opportunity to obtain immigration and identify documents that accurately reflect their gender identity – an opportunity that may not be available to them in their home country.
    • Present: International students seeking employment with LGBTQI+ organizations or with expertise in LGBTQI+ issues may be eligible for certain generally available immigration benefits.
      • • Nonimmigrant Visas for Temporary Workers: LGBTQI+ international students who will be working in a professional occupation that is related to their degree and who will be sponsored by an eligible cap-exempt US employer, potentially including LGBTQI+ organizations, may qualify for Cap-Exempt H-1B Specialty Occupation status, which is not subject to the annual numerical limits otherwise imposed on this temporary work visa category. To qualify as a cap-exempt employer, the organization must be one of the following: an institution of higher education, a nonprofit organization or entity related to or affiliated with an institution of higher education, or a nonprofit research organization or a government research organization. Additionally, LGBTQI+ entrepreneurs, including founders of organizations, and experts on LGBTQI+ issues, may be eligible for the O-1 Extraordinary Ability This nonimmigrant visa category is reserved for those with extraordinary ability and achievement in the sciences, education, business, athletics, the arts, or the motion picture or television industry. To qualify for an O-1 visa, LGBTQI+ international students must have earned a major award or must have satisfied a defined number of enumerated criteria. Despite the high legal standard, with proactive planning, LGBTQI+ international students may qualify for the O-1 visa early in their careers, if they meet the applicable legal standard. LGBTQI+ international students could consider involvement in LGBTQI+ student groups and centers at their academic institutions to build strong relationships with faculty and administrators who could provide support letters for the O-1 petition.
        • Employment-Based and Self-Petition Green Cards: LGBTQI+ international students may be eligible for the EB-1 Extraordinary Ability green card category, which has requirements that largely mirror the O-1 Extraordinary Ability visa discussed above. They may also be eligible for the EB-1 Outstanding Researcher category if they will work in a research-focused role, including LGBTQI+ research, satisfy a defined number of enumerated criteria, and meet the overall standard of being internationally recognized as outstanding in their field. Moreover, they may qualify for an EB-2 National Interest Waiver if they have an advanced degree or exceptional ability and will pursue an endeavor in the “national interest.” Depending on the facts of the particular case, LGBTQI+ work, including policy, healthcare, and other issues, might be considered in the national interest for NIW green card purposes. The Extraordinary Ability and National Interest Waiver green card categories do not require an employer-sponsor or job offer so LGBTQI+ international students may self-petition.

Immigration Obstacles for LGBTQI+ International Students

The U.S. has successfully removed many of the barriers that previously excluded or disadvantaged LGBTQI+ international students. However, certain obstacles remain.

• • • Gender Selection on Immigration Applications:  Unlike USCIS, the Department of State (DOS) Visa Office has not updated its policy regarding gender markers. Therefore, international students applying for visa stamps at a U.S. Embassy or Consulate abroad will need to present supporting documentation that aligns with the gender selected on their visa application (DS-160).
    • Gender Markers on Immigration Forms: In March 2023, USCIS indicated that it is working to include a third gender identifier (X), in addition to the Male/Female (M/F) gender markers, on U.S. immigration application forms and issued documents. To date, USCIS has not updated the forms. Until this change is implemented, international students will need to select either the Male or Female (M or F) gender markers on their U.S. immigration applications.
    • Unmarried Same-Sex Partners: The U.S. does not recognize civil or domestic partnerships for derivative immigration benefits. Therefore, unmarried same-sex civil or domestic partners of LGBTQI+ international students need to consider other immigration options, such as their own student visa, employment-based visa, or a long-term “domestic partner” visitor visa.

• • • Local Conditions: When selecting an academic institution or employer in the U.S., LGBTQI+ international students should consider local conditions, as attitudes, laws and policies toward sexual orientation and gender identity vary by institution, state and city. The Human Rights Campaign (HRC) has issued a guide for LGBTQI+ individuals in the U.S. due to recent policies in certain parts of the country. Fragomen Educational Services (FES) is available to help prospective international students, including LGBTQI+ students, identify an academic program that best suits their needs.
    • Other Travel Considerations: For more information regarding travel to the United States for LGBTQI+ individuals and families, please see our Fragomen blog post Traveling with Pride: Immigration Updates and Mobility Considerations for LGBTQI+ Travelers to the United States.

Fragomen’s International Student Pathways Program

Given the unique circumstances for LGBTQI+ international students, it is important for these students to proactively plan their US immigration journey.

Fragomen’s International Student Pathways Program can help by working with LGBTQI+ international students to create personalized immigration plans. We also partner with the international student offices and career services offices at academic institutions to support their international students, including conducting immigration information sessions for international students and assisting with complex student visa and work authorization issues.   

Need to know more?

For questions related to LGBTQI+ international students, please contact Senior Associate Kyle Sommer at [email protected] or Associate Ana Gabriela Urizar at [email protected]. 

This blog was published on June 21, 2024, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, Twitter, Facebook and Instagram.