The U.S. State Department, on May 18th, 2021, eliminated a longstanding policy refusing to acknowledge the U.S. citizenship of the children of many married same-sex couples.
Over the last several years, LGBTQ immigrant rights in the United States have changed significantly. A progressive cultural environment and several court cases have helped to equalize the treatment of same-sex marriage in the U.S. immigration system and protect the basic rights that many non-LGBTQ take for granted.
While the gay, lesbian, bisexual, and transgender communities continue to be persecuted throughout much of the world, LGBTQ rights are catching up in the United States. The goal is that persons who identify as LGBTQ are simply treated as any other individual. That isn’t to say that persons who identify as LGBTQ don’t continue to have unique challenges when immigrating.
Previously, the State Department claimed that both parents must be biologically related to a child in order for them to be recognized as a U.S. citizen at birth. However, the Immigration and Nationality Act has never required a biological relationship for married parents. As such, every federal court that heard the issue found that the State Department’s policy was inconsistent with the statute. As of today, the State Department will recognize the children of all married U.S. citizens who are born abroad as citizens at birth.
“This is a remarkable moment for all the LGBTQ families who fought the U.S. State Department’s unconstitutional policy,” said Immigration Equality’s Executive Director, Aaron Morris. “It demonstrates that when our community is united and relentlessly pushes back against discrimination, we win. We have once again affirmed that it is not biology but love that makes a family.”
“Recognizing the advances in assisted reproductive technology (ART), the State Department is updating our interpretation and application of Section 301 of the Immigration and Nationality Act (INA), which establishes the requirements for the acquisition of U.S. citizenship at birth.
Children born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet the INA’s other requirements. Previously, the Department’s interpretation and application of the INA required that children born abroad have a genetic or gestational relationship to a U.S. citizen parent.
This updated interpretation and application of the INA takes into account the realities of modern families and advances in ART from when the Act was enacted in 1952.
This change will allow increased numbers of married couples to transmit U.S. citizenship to their children born overseas, while continuing to follow the citizenship transmission requirements established in the INA. Requirements for children born to unmarried parents remain unchanged.
At the same time, we remain vigilant to the risks of citizenship fraud, exploitation, and abuse. As with all citizenship and immigration benefits, we examine, the Department will implement this policy in a manner that addresses these concerns.”