In spite of the good law on the books in this area, transgender individuals continue to have difficulties enforcing their rights, and CIS officials continue to misapply the law. If you are experiencing any difficulties in these areas, please contact our office. In April 2012, USCIS issued new guidance which we are hopeful will make it easier for transgender individuals to correct gender markers on their documents and to receive marriage-based benefits.
In 2005, there was also a great decision from the Board of Immigration Appeals which applied the long-standing rule that if the marriage was valid where entered into under the laws of that state or country, it’s valid for immigration purposes. In other words, there is no specific federal policy against marriages where one spouse is transgender, so as long as it was legal when and where the marriage took place, it should be a valid basis for a marriage-based “green card” application.
It is also important for transgender individuals to be aware that their transgender identity may be a basis for asylum if they have suffered or fear persecution in their home country.
In 2008, Immigration Equality and Transgender Law Center published a ground-breaking manual entitled Immigration Law and the Transgender Client. The manual is intended for use by attorneys and provides an in-depth look at how to represent transgender immigration clients on issues including: identity documents; marriage-based cases; asylum; and detention. A web-based version of the manual can be seen here, or a printed version is available for purchase here.