On April 16, 2004, Citizenship and Immigration Service (USCIS) issued a policy memorandum stating that USCIS would not recognize marriages for immigration purposes where one or both of the spouses “claims to be transsexual.” In May of 2005, however, the Board of Immigration Appeals (BIA) issued a very positive decision, Matter of Lovo-Lara, holding that as long as the marriage is valid where entered into, it should be valid for immigration purposes. Finally, on April 10, 2012, USCIS issued a Policy Memorandum which accurately reflects the Lovo-Lara decision and simplifies marriage-based petitions where a spouse is transgender.
What does the guidance require for marriage-based petitions?
The new guidance will approve benefits based on marriage where:
- The transgender individual has legally changed his or her gender and subsequently married a person of the other gender (i.e. a transman marries a cisgender woman);
- The marriage is seen as a heterosexual marriage uneer the law where the marriage took place; and
- The law where the marriage took place does not bar a marriage between a transgender individual and a person of the other gender.
What do I need to do to prove that the marriage is different sex?
The transgender spouse will need to prove that he or she has medically transitioned to the current gender. This can be proven with the following documents:
- Amended birth certificate; or
- Other official recognition of the corrected gender such as passport, court order, naturalization certificate or in some cases a driver’s license; or
- Medical certification from a licensed physician (M.D. or D.O.) certifying that the individual has had appropriate clinical treatment for gender transition to the new gender (male or female.)
The Guidance specifies that sex reassignment surgery is not required unless the law of the place of marriage specifies that SRS is required in order to accomplish a change in legal gender.
USCIS is not supposed to ask for the actual medical records if a licensed physician has certified the gender change.
When I married my wife, I was living as a man and obtained a conditional green card. Last year I began to transition to female. Can I now get my permanent green card?
The Guidance specifies that if an individual begins transitioning after getting a conditional green card, the subsequent transition will not prevent her from obtaining the permanent green card. However, it does appear from the Guidance that at the time the initial green card is adjudicated, the couple must be different sex (even if the marriage was clearly different sex when entered into but one spouse later transitions.)
Can I submit a fiance/ee visa petition for my partner abroad under these guidelines?
Yes, if the transgender person in the relationship has transitioned sufficiently to meet the guidelines (i.e. at a minimum a doctor has certified the gender transition), then the American partner can submit a K visa application. If the American fiance/e lives in a state that would not view the marriage as valid and opposite sex, then USCIS will inform the American fiance/e of this and give him or her an opportunity to provide an affidavit stating that the marriage will take place in a different, specified state.
How do I know which states will recognize my marriage?
This is a complicated legal question and one where the law changes frequently. Please contact our office is you have specific questions about the state where you reside.
Marriage-Based Immigration Cases
I am a male U.S. citizen who recently married a male to female transgender woman from Thailand. Will I have any problems applying for a “green card” for her?
It depends. Your wife will need to prove that she has legally changed her sex and that the marriage you entered into is legally recognized in the state or country where you were married. If you’re not sure whether or not your state recognizes marriages where one of both spouses is transgender, contact the Transgender Law Center or Immigration Equality which may have information about your specific state.
Can I bring my transgender partner over to the U.S. on a fiancé(e) visa?
The same rules apply for fiance visas as for marriage-based petitions. If the state where the American partner lives recognizes marriage where one of the spouses is transgender, it should be possible to bring the foreign fiance(e) to the U.S.
I’m a female to male American citizen who was born in a state which does not recognize sex reassignment and will not change my birth certificate even though I’ve fully transitioned. What happens if I marry my Ukranian female partner and try to sponsor her for immigration?
Unfortunately, if your state will not recognize your corrected gender and will see your marriage as same sex, then you probably will not be successful in your efforts to sponsor your partner.
Although it may seem unfair that outcomes will vary depending on the state that you live in, there are other family based immigration petitions where the outcome similarly depends on what state the applicant is in, such as whether it’s possible to marry a first cousin, or whether common law marriages are recognized.
I am a U.S. citizen woman who lives in a state which does not recognize sex changes for any purpose. I’m in a relationship with a male to female transgender woman from Germany and want to know whether I can just marry her (since my state will see her as a male) and then petition for her green card?
There is not a clear answer to this question. If your potential spouse can “pass for male” and has not obtained a new birth certificate, legal name change or undergone surgery to change genders, your plan may work. However, obtaining legal status as a male if she intends to live her life in the U.S. as a female, could create future problems for your partner. Going forward on this application would also put your potential spouse in the difficult position of claiming to be male if that is not what she believes her identity to be. Whether she is willing to do that to obtain immigration benefits is a personal decision that she would have to make.
It is also important to note that getting a “green card” based on marriage is a lengthy process. It generally takes about a year to get the first interview and, if you have been married for fewer than two years, if all goes well after the interview, your spouse would receive a “conditional green card” which is good for two years. After two years, your partner must apply to remove the condition and you have to prove that the marriage is still valid, and, possibly attend a second interview. So, it really would not be safe for your partner to take any further steps in transitioning until she receives the final “green card.”