Traditionally, lesbians and gay men have faced a variety of difficulties with regard to U.S. immigration policies. However, the Immigration Act of 1990 repealed the former law that allowed the Immigration and Naturalization Service (INS) to exclude persons certified by the Public Health Service as "homosexual."  Immigrants can still be excluded for having been convicted of a crime in another country or during a previous visit to the United States involving what the INS calls "moral turpitude." Moral turpitude is defined as "behavior done contrary to justice, honesty, modesty or good morals, acts of baseness, vileness or depravity in private and social duties."

In theory, therefore, a prior conviction under a consensual sodomy statute could be the basis for exclusion (for example, sodomy convictions in the former Soviet Union).  However, we have heard of no cases since the effective date of the Immigration Act of 1990 in which such convictions have had this effect. 

In order to become a naturalized citizen, the applicant must be of "good moral character." However, the Fourth Circuit Court of Appeals, the federal appeals court with jurisdiction over North Carolina, has ruled that private consensual homosexual acts in themselves do not make one ineligible for naturalization for lack of "good moral character." Nemetz v. INS, 647 F.2d 432 (4th Cir. 1981).  Likewise, HIV status is not a bar to citizenship; however, testing HIV-positive is a bar to green cards (Lawful Permanent Residency or LPR) or adjustment of status unless the applicant obtains a waiver.  Applicants testing HIV-positive rarely qualify for green cards.

Because of the complexity of immigration law, it is advisable for lesbians and gay men with matters before the INS to consult with a lawyer specializing in that field.

Edited Fall 2003 by:

NC GALA Intern Lindsay Wilkes, UNC Law '07

and former NC GALA Attorney Member Stephen Batten

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This page was last updated on November 24, 2004.