Traveling with Pride: Immigration Updates and Mobility Considerations for LGBTQI+ Travelers to the United States

Fragomen acknowledges and celebrates the respect, dignity and accomplishments of Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (LGBTQI+) people around the world—not only during Pride Month, but all year long. This blog post explores the latest immigration updates and mobility considerations for LGBTQI+ travelers to the United States.

Immigration Updates

The United States has made significant advancements toward inclusivity and equality for the LGBTQI+ community. This progress extends to the immigration arena, where LGBTQI+ individuals and families now have clearer pathways and greater recognition of their rights. The most recent immigration updates focus on people who identify as transgender, non-gender conforming or intersex.

• Same-sex Marriage: The United States continues to only recognize same-sex marriage for the purposes of immigration-dependent benefits. It does not recognize most other partnerships, including civil or domestic partnerships.
• Additional Gender Marker: U.S. immigration agencies are currently 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. This option is now available on U.S. passport applications, which are submitted to the U.S. Department of State.
• Gender Selection: For applications submitted to the U.S. Citizenship and Immigration Services (USCIS), individuals may self-select any gender marker on their U.S. immigration paperwork regardless of the gender marker indicated on their supporting documentation. For example, although an individual’s birth certificate may list F (Female), they may select a different option when completing their U.S. immigration forms.
• Changing Gender Marker or Legal Name: Under USCIS’s new policy, individuals may change the gender marker listed on their issued immigration documents. Unlike some other countries, submission of proof of gender identity (e.g., medical examination or documentation) is not required to change an individual’s gender marker on most U.S. immigration documents. The one exception is the Application for Replacement of Naturalization/Citizenship Document (Form N-565). Legal name changes continue to require legal documentation confirming the change.

Risks and Challenges

Despite this progress, LGBTQI+ travelers to the United States still face risks and challenges.

• Country Conditions: LGBTQI+ travelers may experience worse conditions or fewer protections in certain parts of the United States than in their home country. U.S. immigration laws and policies, which are generally favorable to LGBTQI+ people, are governed at the federal level. However, other protections for LGBTQI+ people are governed at the state and local level. Recently, there has been an increase in U.S. state and local laws targeting transgender individuals (including access to gender affirming healthcare), drag queens and access to LGBTQI+ books and other resources. For the first time, the Human Rights Campaign (HRC) has issued a National State of Emergency for LGBTQI+ individuals in the United States due to the spike in anti-LGBTQI+ legislation in some states.
• Increased Scrutiny of Documentation: Due to the recent policy changes permitting the issuance of documents listing a third gender marker (X), travelers to the United States with a third gender marker (X) on their travel documents or other personal identification documents (e.g., passports, visas, birth certificate, other government-issued ID), should be prepared for potentially increased scrutiny. For example, immigration officials or identity verification software may flag inconsistencies or discrepancies between the gender markers listed on the presented documents, or between the documents and the traveler’s physical appearance, which could result in processing delays.

Travel Tips

Preparation is key to ensuring the safety and well-being of LGBTQI+ travelers and their families to the United States.

• LGBTQI+ Travel Resources: Global Mobility leaders should provide LGBTQI+ travelers and their families with resources, including checklists and country conditions reports for the United States, well in advance of travel. These resources will inform travelers of all potential risks and challenges during their travel.
• Update Identity and Travel Documents: Prior to travel, future travelers should update their travel, personal identification, and family relationship documentation to uniformly reflect their name, gender and family relations.
• Carry Supplemental Identity Documents: Where there are inconsistencies or discrepancies between the name or gender markers listed on documents, or between the documents and the traveler’s physical appearance, travelers should consider carrying supplemental documentation to verify their identity. Examples of supplemental documentation could include a legal name change or gender affirmation documentation, a letter from a medical professional, a copy of a birth certificate, or a second passport with a gender marker other than “X”.
• LGBTQI+ Families: LGBTQI+ parents traveling with their children should consider carrying supporting documentation that confirms their parental relationship. This is particularly important if the child’s birth certificate does not list the parent (including step or adopted parents) or if the parent’s legal name or gender marker has changed since the issuance of the child’s birth certificate. Examples of supporting documentation could include a legal name change or gender affirmation documentation, court records, or documentation confirming child custody. It is also advisable to carry a copy of a durable power of attorney for healthcare or other healthcare directives in the event of a medical emergency of a child or unmarried partner.

Need to know more?

For questions related to mobility considerations for the LGBTQI+ community, please contact Senior Associate Kyle Sommer at [email protected].

For additional conversation on this topic, Fragomen Partner Chad Ellsworth and Head of Talent Mobility, Immigration and Flexible Work Program at Twitter Rina Montalvo also discuss global mobility for LGBTQI+ travelers on a Fragomen podcast and video.

This blog was published on June 12, 2023, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please visit our dedicated COVID-19 site, subscribe to our alerts and follow us on LinkedIn, Twitter, Facebook and Instagram.