In the 50 years since lesbian, gay, bisexual, and transgender, or LGBT, people were prohibited from lawfully entering the United States under the Immigration and Nationality Act, or INA, the country has taken commendable steps to dismantle discriminatory immigration policies. The U.S. Supreme Court’s 2013 decision to overturn Section 3 of the Defense of Marriage Act, for example, legally ensured that married same-sex couples were finally able to access the same immigration benefits as other couples in order to keep their families intact. Unfortunately, marriage remains out of reach for many of the world’s same-sex couples: Only 22 countries currently have marriage equality, and same-sex relationships are still criminalized in nearly 80 countries.
Under U.S. law, the spouses of U.S. citizens; lawful permanent residents, or LPRs; refugees; and asylees can come to the United States. And citizens can bring their partners here under a K-1 visa so that they can marry and then obtain a green card. There is, however, no such visa option for current green-card holders, resettled refugees, or asylees. This means that unmarried LGBT people who receive protection from persecution in the United States must wait until they become naturalized citizens before they can bring their partners to be with them. It can take a period of at least five years to become a naturalized citizen; during this time, the loved ones of green-card holders, resettled refugees, or asylees must wait in the dangerous countries that their partners fled.
In recognition of the enduring discrimination that LGBT families face around the world, the U.S. government recently extended P3 eligibility to same-sex partners of resettled refugees and asylees, allowing qualifying refugees to bypass United Nations High Commissioner for Refugees, or UNHCR, referrals to be resettled in the United States with their partners. This eligibility is limited to 24 countries of origin, however, and the applicant must go through the refugee resettlement process—which can take more than a year. A 2015 CAP report found that most LGBT asylum seekers do not come from these 24 eligible countries. Additional policy changes are needed to address these challenges and overcome the lack of visa options for same-sex partners of LPRs, refugees, and asylees who are looking to enter the United States. In these cases, humanitarian parole should be used to reunite LGBT families.
Legal basis for humanitarian parole
Humanitarian parole is a discretionary grant that is available in limited circumstances and allows an otherwise ineligible individual to temporarily enter the United States for “urgent humanitarian reasons” or “significant public benefit.” Section 212(d)(5) of the INA gives the U.S. Attorney General the authority to parole immigrants into the United States. This authority was transferred to the Secretary of Homeland Security through Sections 402 and 421 of the Homeland Security Act of 2002. According to U.S. Citizenship and Immigration Services, or USCIS, family reunification is one criterion for immediate processing of humanitarian parole requests.
Establishing eligibility for humanitarian parole
The U.S. State Department’s Foreign Affairs Manual outlines who is eligible for parole. (Document on file with author.)
Eligibility is limited to individuals who:
- Are otherwise ineligible for a visa; and
- Cannot benefit from a waiver; and
- Have urgent humanitarian reasons to travel to the United States; or
- Whose travel to the United States presents a significant public benefit.
Humanitarian parole may not be used to circumvent normal immigration procedures. In other words, it may not be used if a visa or waiver is available or in order to circumvent the refugee resettlement process. Same-sex partners of LPRs, refugees, and asylees who are seeking to join their partner in the United States would not be eligible for a nonimmigrant visa since their intention is to remain here with their partner.
In addition to these criteria, USCIS employs a two-part analysis to determine humanitarian parole eligibility. The analysis asks whether an immigrant demonstrates humanitarian need and whether the U.S. government should exercise discretion to grant them parole. Family separation combined with the discrimination that LGBT people face in countries where marriage equality is not recognized—or where same-sex relationships are criminalized—demonstrates this humanitarian need.
Humanitarian parole applications for same-sex partners are frequently rejected
Same-sex partners of LPRs, refugees, and asylees clearly meet the standard for a grant of humanitarian parole. Moreover, the USCIS’s Adjudicator’s Field Manual permits “district directors to authorize parole ‘because of emergent or humanitarian considerations.’” This part allows the widest range of discretion.” Yet despite these facts, USCIS has used its discretion to deny these applications. According to a CAP interview with Immigration Equality Legal Director Aaron Morris, his humanitarian parole application on behalf of the partner of a transgender Egyptian asylee was rejected with the boiler plate language, “humanitarian parole cannot be used to circumvent the regular visa process.” Yet for this couple, there was no regular visa process. The partner’s application for a tourist visa had been denied, and the asylee could not wait to bring his partner to the U.S. after becoming a naturalized citizen. That process would take another four years, and the partner’s life was in danger in Egypt: the asylee’s family had threatened to throw acid in her face. Morris asked USCIS headquarters to review the denial, and USCIS finally granted the request in November 2015—a year and a half after it was originally filed. This marked the first time that Immigration Equality received a grant of humanitarian parole from USCIS.
Humanitarian parole is an expensive gamble for LGBT people who seek reunions with their loved ones in the United States: Each applicant must pay $305 to enter a process where there is little chance of success, no explanation for rejections, and no option for appeal. To better serve LGBT families and protect them from discrimination and violence abroad, USCIS should review the rejected humanitarian parole applications that involve same-sex couples in order to ensure that these applications were correctly adjudicated. USCIS should also issue guidance to clarify under what circumstances humanitarian parole is available—including clear guidance on its availability for same-sex partners of LPRs, resettled refugees, and asylees in cases where humanitarian parole is the only option for family reunification. The guidance should also include information on the barriers to marriage that same-sex couples face in much of the world, the lack of visa options for same-sex partners, and recognition of evidentiary barriers that exist for same-sex couples to prove their relationship. Finally, any future immigration reform legislation should include provisions to reunite same-sex couples who are unable to legally marry in their home countries.
Sharita Gruberg is a Senior Policy Analyst for the LGBT Research and Communications Project at the Center for American Progress.