If I am granted asylum can my same-sex husband get asylum as well?

A gay or lesbian spouse can, if the marriage is legally recognized, be a derivative on a U.S. asylum application.

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Question

I am a male citizen of Argentina who married my longtime boyfriend, a citizen of Venezuela, in Buenos Aries last year. After a lifetime of abuse by police and my family on account of my sexual orientation, I was lucky to be invited to appear on a Spanish talk show in Miami. After arriving in the United States I decided to apply for asylum. Can my husband get asylum as my spouse?

Answer

On June 26, 2013, the U.S. Supreme Court ruled that same-sex spouses are entitled to the same federal benefits that people in heterosexual marriages have. This includes immigration benefits.

The first thing to double check on is that you were married in a country or U.S. state that recognizes same-sex marriage. Domestic partnerships and civil unions do not count for U.S. immigration law purposes. Check with a local lawyer, or see the summaries on the “Where Can We Marry?” page maintained by the nonprofit group Immigration Equality.

If your husband is in the United States, be sure to not only include his name on the I-589 form that you prepare in order to apply for asylum, but check “yes” in the appropriate box-in Part A.II, Question 24 in the section for spouses, and Question 21 in the section for children (referring to the version of Form I-589 that expires on 11/30/2014).

That way, if you win asylum, your spouse will receive asylum as a dependent. Unfortunately, if you are denied, and his status in the U.S. has run out, this also means he will be placed into removal proceedings.

If your husband suffered or feared persecution in his home country of Venezuela, he can also file his own application for asylum and list you as a dependent. This gives you a second chance at gaining asylum in the U.S., in case USCIS denies your application.

If your spouse is outside of the U.S. when you are granted asylum, you can file a petition to have him join you in the U.S., using USCIS Form I-730. See Nolo’s article on “Filling Out Form I-730, Refugee/Asylee Relative Petition” for help with this.

Both you and your spouse can apply for a green card one year after receiving asylee status.

It is always a good idea to consult with an immigration lawyer on asylum claims, especially since this is a change in a continually evolving area of law. Also, for more information, see the “LGBT and U.S. Immigration Rights” page of Nolo’s website.

by: , J.D., LL.M.

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