Chapter 4

4  Marriage-Based Petitions

Marriage has always enjoyed a special status under U.S. immigration law. Over the past three years, the average number of marriage-based immediate relative visas that were issued total around 290,000 each year.[1]Marriages involving U.S. citizens (USCs) receive especially favorable status; they are not subject to any visa quotas,[2]and the marriage to an immediate relative of a USC can “forgive” certain violations of the immigration law such that the foreign national is able to apply for a “green card” (adjust status) from within the United States.[3]Currently, U.S. Citizenship and Immigration Services (USCIS) does not recognize same-sex marriages for any purpose regardless of where the marriage was entered into. The treatment of marriages where one or both spouses are transgender is a complex and evolving area of the law, however. This chapter will provide a history of USCIS’s treatment of such marriages as well as an overview of the analysis a practitioner should use to determine whether the marriage of a client is likely to be recognized by USCIS.

4.1  Definition of Marriage Is State-Based

Marriage is a family law-based concept and family law is governed by state law, not federal. So, even though immigration law is entirely federal, to determine issues of family law, USCIS looks to the law of the state where the marriage was entered into or, for foreign marriages, to the state where the U.S. spouse resides. The rule that the Board of Immigration Appeals (BIA) has developed is that a marriage will be considered valid for immigration purposes if it is valid in the state where it was entered into unless it violates a strong public policy.[4]

4.1.1  Adams v. Howerton

The only federal case to directly address issues of same sex marriage under immigration law is Adams v. Howerton.[5]In that case, Adams, a USC, and his foreign national partner, Sullivan, were able to obtain a marriage license from the state of Colorado. They also celebrated a religious ceremony, and subsequently, Adams petitioned for an IV on Sullivan’s behalf. The petition was denied by legacy INS and the district court and an appeal before the Ninth Circuit U.S. Court of Appeals followed. The Ninth Circuit reasoned that even if the marriage was considered valid under Colorado law, which it did not appear to be, an analysis of the Immigration and Nationality Act (INA) did not reveal any intent by Congress to recognize marriages between same-sex spouses. In part, the court reached this decision because at the time of the Adams decision, homosexuality itself was a ground of inadmissibility under the INA, and the court found it highly unlikely that Congress simultaneously intended to exclude gay people and to accord their relationships the special status given to opposite-sex marriages.[6]

While the Adams case is fortunately inapposite to opposite-sex marriage cases involving a spouse who is transgender, it is still worth reading and considering. In this case, even though there was no legislative history stating that Congress had intended to exclude same-sex marriages from the marriage definition in the INA, the court found that the lack of any history including same-sex marriages meant that the “common meaning” of marriage should prevail. This approach could cut both ways in a marriage case involving a transgender spouse. On the one hand, the “common meaning” of marriage could be seen to include only marriages between individuals who were born the opposite sex. On the other hand, if the marriage before the court is now an opposite sex marriage, this should be found to fit within the “common meaning” of marriage.

4.1.2  BIA Cases Involving Public Policy Issues

There have been numerous cases in which the BIA has addressed whether a marriage that was valid where entered into should be considered valid for immigration purposes. In these cases, the BIA’s analysis hinges on whether there is a strong public policy against the marriage. Thus, for example, it has addressed the issue of a marriage between an uncle and niece. In In re Da Silva, a Portuguese man married his niece in Georgia. Although the couple was domiciled in New York, which did not allow such marriages, the marriage was lawful under Georgia law and New York did not have any law forbidding recognition of such marriages that were entered into in another state. Thus, the BIA concluded that New York did not have a strong policy objection to such a marriage and it was, therefore, lawful for immigration purposes.[7]

By way of contrast, in cases involving polygamous marriages, the BIA has consistently held that they are invalid because of clearly stated public policy objections. In the case of In Re H–,[8]the BIA found that because the INA had provided that polygamists were excludable since the late 19th century, a polygamous marriage could not qualify as valid under the INA. In that case, a USC woman petitioned for her Jordanian husband who had more than one wife. Although his marriage to the USC was lawful under Jordanian law where it was entered into, the BIA would not recognize it for immigration purposes. Cases involving polygamy differ from cases involving incestuous relationships in that the U.S. federal government has taken a position against polygamy, whereas states have typically made their own determinations about which level of consanguinity is too close to support a valid marriage.

4.2  The Federal Defense of Marriage Act

One of the very few areas of family law in which Congress has expressly stated its public policy view is in the area of same-sex marriage. In 1996, Congress enacted the Defense of Marriage Act (DOMA), which defined marriage as “only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.”[9]DOMA was enacted as a direct result of a state court decision in Hawaii that promised to recognize same-sex marriage under Hawaiian law.[10]However, the legislative history of DOMA reveals almost no mention of immigration benefits or of marriage rights for transgender people.[11]The applicability of DOMA to marriage-based petitions for immigration is discussed more fully below.

4.3  USCIS Policy on Transgender Marriage Cases

For many years, immigration cases involving a transgender spouse were treated like all other marriage cases, that is, as long as it was considered valid in the jurisdiction where it was entered into, it was generally recognized for immigration purposes. Suddenly, in 2002, USCIS appeared to reverse its long-standing policy and began to issue denials in all marriage-based cases involving a transgender spouse. As advocates struggled to comprehend the reason for the policy change, they involved members of Congress to make inquiries to USCIS to clarify its position. Several organizations, including Immigration Equality and the Transgender Law Center, also wrote to USCIS asking the agency to return to its policy of looking to state law to determine the validity of marriages. Thereafter, USCIS issued two memoranda stating its policy more explicitly.

4.3.1  Ridge Memo

In the case of one denied I-130 IV petition, the USCIS district director sent the applicant’s attorney a DHS memo dated January 21, 2004, that was signed by then–U.S. Department of Homeland Security (DHS) Secretary Tom Ridge, along with the denial. This memo, which appeared to be intended for internal use at DHS, explained that there were two contexts in which transgender identity was relevant to immigration adjudications—issuance of replacement identity documents and marriage-based applications. The memo laid out three possible options for DHS to adjudicate immigration applications involving transgender individuals.

Option 1—DHS would rely on birth sex for all purposes—that is, for identity documents and for marriage-based petitions. The memo acknowledged that this approach would be internally consistent but also recognized that there was little purpose in issuing identity documents that did not reflect the outward appearance of the foreign national. The memo also noted that this approach could lead to the anomalous result of recognition of a “same-sex” marriage where one spouse is transgender and enters into a relationship with a person who was opposite sex at birth but is now the same-sex as the other spouse.

Option 2—DHS would recognize changed sex for identity documents but rely on birth sex for marriage-based petitions. The memo acknowledged that this approach would be internally inconsistent but also found that issuing replacement identity documents would be less controversial than actually providing an immigration benefit based on recognition of a marriage involving a transgender individual. Again, the memo also noted that this approach could lead to the anomalous result of recognition of a “same-sex” marriage where one spouse is transgender and enters into a relationship with a person who was opposite sex at birth but is now the same-sex.

Option 3—DHS would recognize corrected gender for all purposes, that is both for issuance of identity documents and for marriage-based petitions. The memo acknowledged that this approach was the most internally consistent, defensible and logical under DOMA, given that marriage-based cases are generally governed by state law. It also stated that this option would avoid the potential recognition of same-sex relationships noted above. However, the memo found that this approach would be “politically controversial.”

The memo’s authors, therefore, recommended making Option 2 DHS policy, and this was the option that Secretary Ridge approved.

4.3.2  Yates Memo

Three months after the internal Ridge memo, on April 16, 2004, William Yates, Associate Director for Operations at USCIS, issued a public memo to all regional directors, service center directors, and district directors stating USCIS policy on issues relating to transgender immigration applicants. The memo essentially reiterated the position DHS espoused in the Ridge memo, that is, for purposes of issuing identity documents, the document should “reflect the outward, claimed and otherwise documented sex of the applicant at the time of CIS document issuance.”[12]

For applications based on marriage, however, the memo stated that, “CIS personnel shall not recognize the marriage, or intended marriage, between two individuals where one or both of the parties claims to be transsexual, regardless of whether either individual has undergone sex reassignment surgery, or is in the process of doing so.”[13]The memo appeared to take the Ridge memo one step further in abrogating the rights of transgender individuals. Now, rather than relying exclusively on birth sex for marriage-based petitions, USCIS was saying that anyone who “claimed to be transsexual” would not have his or her marriage recognized at all. This more restrictive approach may have been adapted to avoid the possibility of recognizing any seemingly same-sex marriage.

4.4  In re Lovo-Lara

Against this bleak backdrop of institutionalized USCIS discrimination, against transgender foreign nationals and their families, in 2005, the Board of Immigration Appeals issued a shockingly favorable precedential decision recognizing the marriage of a post-operative transgender woman to a biologically born male.[14]The decision, In re Lovo-Lara,[15]was not only incredibly significant for binational couples which include transgender spouses, it is also a rare example of a federal tribunal ruling favorably on a transgender legal issue.

4.4.1  Facts of Case

In re Lovo-Lara was in many ways the perfect fact pattern for a positive decision. In that case, it was the U.S. citizen, not the foreign national, who was transgender. She was born in North Carolina, which also is the state where the marriage took place. North Carolina law explicitly provides for amending birth certificates for transgender individuals. Moreover, because sex reassignment surgery is more common for transgender women than men, it was also helpful that the transgender spouse was female and that she had undergone complete sex reassignment surgery.

4.4.2   Analysis

While the Lovo-Lara case does not cover every possible fact pattern that may arise involving a marriage where one or both spouses is transgender, it does explain what analysis to use in determining whether a marriage will be recognized for immigration purposes. Most importantly, the BIA explicitly reiterated its long-standing rule that the recognition of a marriage for immigration purposes should be based on relevant state law.

4.4.2.1  DOMA Inapplicable

The BIA first began with a discussion of DOMA. The Nebraska Service Center had denied the petition based on DOMA, finding that because Congress had not explicitly authorized marriages where one spouse is transgender, USCIS had no authority to recognize the marriage.[16]The BIA unequivocally rejected this approach. The board reviewed the legislative history of DOMA and found that nothing in that law was intended to preclude the marriage of a post-operative transsexual to a member of the opposite sex.[17]Instead, the BIA found that the long-honored rule of recognizing a marriage for immigration purposes if it was recognized in the jurisdiction where entered into should govern in cases involving transgender individuals.[18]

Lovo-Lara was probably successful because the facts were so straightforward. The decision lays out the analysis a practitioner should undertake to determine whether a particular marriage involving a transgender individual is likely to be recognized by USCIS.

4.4.2.2. Sex Change Recognized

The first prong of the BIA analysis is whether the sex change has been recognized by the state or country where the transgender person was born. In Lovo-Lara, the transgender spouse was born in North Carolina, a jurisdiction with a statute that explicitly provides for birth certificate amendment for transgender people.[19]

Note: There are currently 29 states (and the District of Columbia) that have explicit statutes that provide for birth certificate amendment or issuance of a new birth certificate. These states include: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, Utah, Virginia, Wisconsin, and Wyoming. Sixteen states are silent on the issue, neither explicitly authorizing nor prohibiting the amendment of a birth certificate. These states include: Alaska, Delaware, Idaho, Indiana, Minnesota, Mississippi, Nevada, New York, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Vermont, Washington, and West Virginia. Courts in Kansas, Ohio, and Texas have held that their states will not recognize a marriage where one party has corrected his or her gender on the birth certificate unless that correction was to ameliorate some error on the original. A court in Florida has held that marriages in that state will be void if the sex of the parties at birth were the same, regardless of any subsequent corrective surgery.[20]Tennessee is the only state that explicitly prohibits by statute the changing of a person’s sex on the original birth certificate after sexual reassignment surgery.[21]

In Lovo-Lara, the petitioner was a U.S.-born citizen, had completed sex reassignment surgery, and, in accordance with her state’s laws, she had had her birth certificate amended. Thus, in terms of recognition of her corrected gender, this case presented a best-case scenario.

If the transgender individual had experienced the bad luck of being born in a state that does not allow for gender reassignment, he or she may not have been successful in having a marriage recognized. However, this area of the law, as most areas of transgender law, contains many gray areas. The transgender spouse could try to get other documents to prove that he or she has changed his or her sex. If the transgender individual now lives in a state that allows one to correct the gender on a driver’s license or a state identity card, he or she should do so. This government-issued identification may, in turn, allow one to enter into a marriage that will be recognized in the state where the transgender person now resides.

Note: If the transgender spouse is the foreign-born partner and he or she has been out of status in the United States for more than 180 days and is still physically present as a practical matter, that spouse will not be able to return to his or her home country to seek a new birth certificate because of the three– or ten-year bar on his or her return to the United States.[22]One can attempt to obtain corrected identity documents in the state of residence, but may run into the Catch-22 of being unable to obtain state identity documents because he or she is undocumented, but, at the same time, unable to legalize one’s immigration status through marriage because he or she cannot get proper documents to correct his or her gender.

4.4.2.3  Marriage Recognized

The next prong of the Lovo-Lara analysis is to determine whether the marriage was valid in the jurisdiction where it was entered into. Most states will not have any statute that either permits or denies marriage rights to transgender individuals, but several states have case law that has either explicitly recognized marriages involving transgender individuals or explicitly disavowed such marriages.[23]               

In the absence of any law directly on point regarding marriage, in the Lovo-Lara decision, the BIA gave great weight to the fact that North Carolina had a statute permitting the amendment of birth certificates for post-operative transsexuals. The BIA concluded that since the state recognized the corrected gender, it would see the marriage as opposite sex, and, therefore, it was valid for immigration purposes.

Practice Tip: If at all possible, before your clients marry, you should research for the couple whether the state in which they reside will recognize their marriage. If it clearly will not, you should research whether there is another jurisdiction with more favorable laws where they could marry and make sure there is no residency requirement for the couple in that state.

4.5  Non-Precedential Decisions

In addition to In re Lovo-Lara, which is the only precedential decision to deal with a marriage-based petition for a couple with a transgender spouse, the BIA has issued several non-precedential decisions that deal with this issue. While the unpublished decisions cannot be cited as precedent, they are a valuable aid to the practitioner to formulate arguments in cases in which the facts are less clear-cut than in Lovo-Lara.

4.5.1  In re Widener

Prior to the precedential decision of Lovo-Lara, the BIA issued a similarly favorable decision upholding a marriage involving a transgender spouse for immigration purposes. In In re Widener,[24]Esperanza Widener was born biologically male in the Philippines. She had sex reassignment surgery in the Philippines and received a court order there changing her sex and her name. She also was able to obtain an amended birth certificate reflecting both her female gender and new name. The BIA cites the Philippines court record, describing in some detail the surgery Ms. Widener underwent as well as her lifelong feelings that she was actually female. The couple married in the Philippines and Ms. Widener’s USC husband filed a petition for an IV on her behalf.[25]Citing DOMA, USCIS denied the petition for the visa.

The BIA remanded the case for further consideration. The board found that based on the Philippines’s court order, Ms. Widener was female, making the marriage opposite sex and outside the scope of DOMA. The board stated, “It is well settled that a foreign marriage is deemed lawful for immigration purposes if valid where performed, unless it contravenes a strong public policy of the state where the parties reside (or where one of them resides, and they intend to make their home).”[26]In this case, the USC resided in South Carolina. The board noted that South Carolina was not among the 22 states that explicitly permit legal recognition of sex change by post-operative transsexuals, but found that this was not dispositive as to whether South Carolina would recognize the marriage or whether the state had strong public policy grounds to reject the marriage. The case was, therefore, remanded for these issues to be addressed.

Although Widener predated Lovo-Lara and was not issued as a precedential decision, the board’s analysis was identical. In both cases, it found that DOMA was inapposite. It then looked first to whether the transgender individual’s sex change had been recognized through an amended birth certificate and/or court order. After answering this question in the affirmative, it went on to consider whether the marriage was valid where entered into. Here, the BIA points out that for a foreign marriage, the burden is on the foreign national to prove that the marriage is valid in his or her home country. The final level of analysis is whether the marriage would violate strong public policy in the state in which the couple resides or intends to reside once the foreign national would be granted a visa. Although the board here remanded the case for further consideration of South Carolina’s public policy considerations regarding marriages involving a transgender individual, it did not provide any guidance on how this analysis should be completed, particularly since the case was presumably being remanded back to the Nebraska Service Center[27]for further consideration.

4.5.2  In re Oren

The earliest of the transgender marriage cases to be addressed by the board was In re Oren, which was initially decided in January 2004.[28]In this case, the transgender spouse was an FTM USC who married a biological female from Israel. The couple submitted evidence that the petitioner, Mr. Keegan, had corrected his birth certificate in Michigan to state “male” as his gender and that he had legally changed his name in an Oregon court. The couple was married in Oregon and submitted the Oregon marriage certificate. After the couple attended their adjustment (green card) interview, the USCIS officer requested further information regarding Mr. Keegan’s gender. Subsequently, counsel for the couple submitted evidence from a social worker and two doctors. One of the doctor’s letters stated that Mr. Keegan had had “female to male gender reassignment surgery (mastectomy portion.)”[29]After submission of this additional evidence, the district director of the USCIS Portland office denied the petition, finding that the state of Oregon had not explicitly promulgated guidelines recognizing marriages where a spouse is transsexual, so the couple had failed to demonstrate that the marriage was recognized under Oregon law.

The BIA remanded the case for further proceedings. The board found that Michigan, the state where Mr. Keegan was born, did allow for amendment of gender on birth certificates if the application is accompanied by a physician’s affidavit certifying that sex reassignment surgery has taken place. The board also determined that Oregon, the state where the marriage was entered into, has a statute permitting courts to legally change the sex of an individual “whose sex has been changed by surgical procedure.”[30]Thus, the board decided that it was error for the district director to determine that the marriage would not be recognized under Oregon law without the director having explained how this interpretation could be reconciled with the Oregon birth certificate law. The board remanded the case, both for the parties to more fully investigate Oregon’s law on marriage and to give Mr. Keegan the opportunity to avail himself of an Oregon state law, which would allow him to get a court order recognizing his gender change.

Two years later, the board issued a second nonprecedential decision in the case.[31]Apparently, following the first BIA remand, the district director again denied the visa petition, this time citing DOMA in its denial. The case was appealed a second time, this time subsequent to the precedential Lovo-Lara decision. The board then remanded the case a second time to consider the issues in light of Lovo-Lara.

Perhaps the most significant aspect of this case is that although it was undisputed that Mr. Keegan’s gender reassignment surgery consisted only of a mastectomy without any genital surgery, the BIA did not discuss this medical issue as relevant to whether his gender change would be recognized. Rather, the board appears to again defer to the law of the state. Here, since Michigan amended Mr. Keegan’s birth certificate based on the medical documentation that he supplied, the board did not look beyond Michigan’s determination that he was male. Upon the second remand, the application was finally approved by the district director in 2006.[32]

4.5.3  In re Ahmad

A recent, September 2007, unpublished BIA decision, Matter of Ahmad,[33]reversed the New York district director’s denial of a marriage-based visa petition. In this case, the USC was a male and his wife was a citizen of Singapore who had had sex reassignment surgery. The couple entered into a valid marriage under New York law. USCIS denied the immigrant petition because Ms. Ahmad had been unable to obtain an amended birth certificate from Singapore. According to the decision, the law in Singapore only allows for amendment of birth certificates if the birth certificate was inaccurate when created. Following the reasoning of Lovo-Lara, USCIS denied the immigrant petition, finding that the marriage would not be recognized because Ms. Ahmad did not have a birth certificate in the female gender. Significantly, the board rejected this focus on the birth certificate and found that since Ms. Ahmad had a passport issued in the female gender, the government of Singapore now recognizes her as female. For this reason, the board found that the marriage was opposite sex and was, therefore, recognized under New York law and valid for immigration purposes.

Although nonprecedential, it is important for the practitioner to see that the board does not strictly require an amended birth certificate to recognize gender correction. Rather, it requires some kind of official recognition by the government that the individual has changed a gender marker.

4.5.4  Florida District Director Decision

By way of contrast, if a couple has married in a jurisdiction that has unequivocally stated a policy against recognizing a marriage that involves a transgender spouse, either through statute or through case law, it is pretty clear that the marriage will not be recognized for immigration purposes. While the authors are not aware of any BIA decisions to address this issue, we are aware of at least one decision by a Florida USCIS district director that cites Kanteras v. Kanteras[34]in its determination that a marriage involving a transgender spouse is not recognized under Florida law and is, therefore, against public policy in that state. Under current law, it does not seem that an appeal of such a decision would be successful.

4.6  Open Questions

The BIA has been quite supportive of marriage-based cases involving transgender individuals. The cases discussed above, especially Lovo-Lara, provide helpful guidance in evaluating the likelihood that a particular applicant’s marriage will be recognized for immigration purposes. Nonetheless, there are many questions that still remain unanswered in this developing area of the law.

4.6.1     Cases Where the Applicant Has Not Had Sex Reassignment Surgery

As discussed elsewhere in this manual,[35]while many transgender individuals elect to have surgery performed to conform their external appearance to their internal gender identity, many other individuals who identify as transgender choose not to undergo any surgery, or choose to have some medical interventions but not complete sex reassignment surgery.

Since the Lovo-Lara decision requires the marriage to be recognized as opposite sex and requires some kind of official documentation that the transgender spouse has legally corrected his or her gender, it is unlikely that a transgender individual who has taken no medical steps to transition would succeed in a marriage-based petition.[36]Nonetheless, the BIA and USCIS seem to defer to the expert opinion of medical professionals in determining whether an individual’s gender has been surgically “reassigned.” Thus, in Oren, although the transgender spouse did not have complete genital sex reassignment surgery, the surgery that he did have, along with a doctor’s certification, was sufficient to legally correct his birth certificate and change his gender marker in his birth state of Michigan. This correction, in turn, led his marriage to be considered opposite sex in Oregon where it was entered into.[37]

Practice Tip: While the most straightforward cases will be those in which one of the spouses has had complete genital SRS, it is possible to prevail without SRS. In any event, you should obtain detailed affidavits from your client’s doctors about what medical steps your client has taken to correct his or her gender.

4.6.2  Cases Where It Is Not Possible to Obtain a Corrected Birth Certificate

The first step in the Lovo-Lara analysis was a determination that the USC petitioner had amended her birth certificate to reflect her female gender after having had sex reassignment surgery. The BIA found this to be probative evidence both that the petitioner was now legally female, making the marriage to a Salvadoran man an opposite-sex marriage, as well as proof that North Carolina would not have a strong policy objection to viewing the marriage as opposite sex. Obviously, the transgender spouse should obtain an amended birth certificate if possible, but in some circumstances, this will not be possible.

As seen in the Ahmad decision, the inability of a transgender woman from Singapore to correct her birth certificate was not seen as dispositive in that case where she was able to obtain a passport in her corrected gender as proof of her legally recognized change of sex. If the law prohibits issuance of a corrected birth certificate in the country or state where the transgender individual was born, he or she should make every effort to obtain some other form of proof that the government recognizes his or her corrected gender.

Practice Tip: If the transgender spouse is U.S.-born and lives in a state that does not allow birth certificate amendment, they should not marry in that state. The prohibition on amending one’s birth certificate will likely be seen by DHS as proof that the state has a strong policy objection to recognition of the marriage as opposite sex.

Practice Tip: As a practical matter, if your transgender client is foreign-born, and has overstayed a visa in the United States, it may not be possible for him or her to obtain a corrected birth certificate. Returning to a home country to apply for an amended birth certificate after being in the United States unlawfully for more than 180 days would trigger the three– and ten‑year bars on return.[38]Thus, the client may face a Catch-22 of being unable to correct an identity document because he or she does not have lawful status in the United States and being unable to obtain lawful status here because he or she does not have proper identity documents.

4.6.3  Marriage in a State That Does Not RecognizeMarriages Where a Spouse Is Transgender

If a couple with a transgender spouse marries in a state that expressly prohibits recognition of such marriages, then the marriage will not be recognized by USCIS. If at all possible, the couple should move to a state that will either recognize their marriage or, at a minimum, not prohibit their marriage.[39]

4.6.4  Marriage in More than One Jurisdiction

If a transgender individual has married in a jurisdiction that clearly does not recognize the marriage, for example, Florida, it may be possible for the couple to enter into another marriage in a jurisdiction that does recognize the marriage. As a practical matter, it is unclear whether it would be possible to obtain a marriage license in a second state. Most states will ask the license applicant whether he or she has been previously married, and, if the answer is yes, the applicant will need to explain how the prior marriage terminated. If the applicant responds that he or she is still married, it is unclear whether the second state would issue a license. One possible solution would be to get a court order from the state that does not recognize the marriage, declaring the marriage void, and the applicant could then present this order as proof of the “termination” of the first marriage. Although this sounds like a great many hurdles to jump through, it is far more likely to yield a favorable result than applying for immigration benefits based on the marriage in the state that does not recognize the marriage.

4.6.5  Marriage in State That Permits Same-Sex Marriage

If a couple marries in a state (only Massachusetts and California at the time of publication) or country that permits same-sex marriage, they should be sure to check their marriage license to confirm that the marriage was considered opposite sex in the jurisdiction where it was entered into. For example, Massachusetts marriage licenses list each spouse as “Party A” and “Party B” but also indicate whether each party is male or female. If the license indicates that the marriage is same sex, it will not be recognized for immigration purposes. If the license does not indicate the gender of the parties, the applicant should be prepared to prove that the marriage is opposite sex.

4.6.6  Homosexual-Identified Couple But No Surgery

Another factual situation that may arise is that a couple identifies as gay or lesbian, but neither partner has had any surgery. For example, a lesbian-identified couple is comprised of Bette who was born anatomically female and Tina who was born anatomically male but identifies as female. Tina has had no surgery and has taken no steps to change her gender marker on identity documents. For immigration purposes, this couple should be able to marry as an opposite sex couple and succeed with a marriage-based petition.

As a matter of internal policy, some transgender rights organizations, including Immigration Equality and Transgender Law Center, will not generally accept cases such as this for representation. Although we understand that current immigration law is discriminatory and should recognize same-sex relationships, we feel uncomfortable advocating with DHS for the position that a transgender individual who self-identifies as (in this example) female, should be legally considered male simply because she has had no surgery. However, private practitioners may choose to take on these cases because they do benefit the individuals involved.

Practice Tip: A practitioner who takes on a case with this fact pattern will have to choose whether to counsel the clients to try to “pass” as a “regular” opposite-sex couple at the adjustment interview or whether to disclose the fact that one partner identifies as transgender but has not had surgery. Which approach to take may depend on whether it is possible for the transgender spouse to “pass” as one’s birth sex, as well as whether he or she has legally changed his or her name.

Couples in this situation who choose to go forward with an application as an opposite-sex couple must be counseled that if they have been married for fewer than two years at the time the immigrant status is granted, if all goes well, the foreign national will receive “conditional residence” status after the interview. This means that 90 days before the two-year anniversary after the grant of the “green card,” the couple will have to apply to remove the condition and may face another interview at that time.[40]Thus, if the transgender spouse wants to transition further, it may be prudent to delay doing so for immigration purposes.

4.6.7  Dual Transgender Couple

Practitioners also may encounter a fact pattern in which the couple is opposite sex and both spouses have undergone sex reassignment surgery. For example, Thomas was born as Theresa in the United States, but has undergone surgery and had his birth certificate amended to reflect his male gender and legally changed his name. Thomas marries Rose who was born as Ronaldo in Argentina and has also had sex reassignment surgery. In order to gain recognition of this marriage for immigration purposes, the practitioner should be prepared to do a Lovo-Lara analysis for each individual spouse and for the marriage. That is, first, the practitioner should be prepared to prove that each spouse has succeeded in changing his or her gender in the state or country of birth. If their corrected genders can be established, then the practitioner will need to demonstrate that the marriage is valid in the state where it was entered into and that it does not violate public policy.

Of course, there could be variations on the above scenario, if, for example, one partner has had surgery and the other has not. In any event, the question to resolve will be whether the jurisdiction where the marriage was entered into views it as an opposite-sex marriage and whether the state in which they reside has a policy restriction against the marriage.

4.6.8   Same-Sex Couple in Jurisdiction That Does Not Recognize Sex Change

Some couples may reside in a state that expressly prohibits the recognition of sex change for any purpose, and as a matter of policy, will only recognize birth sex. These restrictive policies may lead to the anomalous result of forcing the state to recognize same-sex marriages if one of the spouses is transgender. For example, Erica is a biologically born female from South Africa. She marries Christine who was born in Florida as a biological male but has since had sex reassignment surgery. Florida law will not recognize Christine’s sex change and continues to see her as legally male. Under Florida law, they should be able to marry as an opposite-sex couple. It is unclear, however, whether USCIS would recognize this marriage. It is clear under Lovo-Lara that the BIA believes that DOMA prohibits recognition of same-sex marriages for immigration purposes. It is an open question whether USCIS would look beyond the state’s determination in this scenario to consider this couple to be same-sex.

Practice Pointer: As with the scenario presented in the previous section, neither Immigration Equality nor Transgender Law Center would likely accept a case with this fact pattern. Again, as a matter of public policy, we believe this couple should be recognized as a same-sex couple and would, therefore, find it ethically difficult to argue that USCIS should accept them as an opposite-sex couple.

4.7  Application Process

The process of applying for legal permanent residence based on marriage to a USC or lawful permanent resident (LPR) is the same whether one of the spouses is transgender or not. Nonetheless, this area of the law is somewhat complicated and will be briefly outlined below.

4.7.1  Adjustment of Status

If the foreign-born spouse is physically present in the United States and applying for a “green card” from within the country, the application process is called “adjustment of status” (AOS). To be eligible to adjust status, the foreign national must generally have maintained lawful status in the United States. The exceptions to this general rule are discussed below. Under the general rule, if one has overstayed a visa, worked without authorization, or otherwise violated status, one generally cannot apply for a “green card” from within the United States and instead must return to one’s home country for “consular processing.”[41]

4.7.1.1  Marriage to a U.S. Citizen

Foreign nationals who marry USCs may adjust their status from within the United States even if they have overstayed their authorized stay or worked without permission in the country.[42]Thus, for example, if a foreign national entered with a tourist visa four years ago and was only authorized to remain in the United States for six months, he or she generally would not be able to adjust status now because he or she has overstayed the visa and is here unlawfully. If, however, one marries a USC, the unlawful presence is “forgiven” and one may proceed with the application from within the United States. Note, however, that this special rule only applies to spouses of USCs, not to spouses of LPRs, who fall under the regular family preference system.[43]Note also that marrying a USC does not “forgive” entry without inspection (e.g., entering the United States without a visa by crossing a border.) Unless an applicant is grandfathered under the expired INA §245(i) (see Grandfathering Under INA §245(i) section supra, chapter 2), he or she will not be able to adjust from within the United States if he or she entered without a visa. This means that the applicant will have to return to his or her home country for consular processing which, in turn, could subject one to the three– or ten‑year bar.[44]

4.7.1.2  Marriage to a Lawful Permanent Resident

Foreign nationals who marry LPRs are subject to the family visa preference system, meaning that first, one’s IV petition (I-130) must be approved and then, one must wait for the “priority date” (date the visa is officially filed) to be current before filing the actual “green card” application (I-485). On average, it is taking about five years for priority dates to become current for spouses of LPRs.[45]In order for a foreign national who has married an LPR to adjust status from within the United States, one must be in lawful status from the date of entry into this country to the date of eligibility to apply to adjust. Unless one holds a long-term NIV, such as a student visa, a skilled worker visa, or an alien of outstanding ability visa, it is unlikely that one would be able to maintain status here for at least five years pending the priority date becoming current. If one falls out of status, he or she will have to return to his or her home country for consular processing. And, if the spouse has been in the United States longer than 180 days or one year without lawful status, he or she may be subject to the three– or ten-year bar on returning to the United States.[46]This means that one would not be issued an IV until one complied with the bar or until being granted a waiver, which, even if successful, can take a very long time. Thus, if one entered with a visa, it may be strategically better to wait until the LPR spouse naturalizes as a USC to submit a marriage-based application.

Other than the complicated rules involving unlawful presence and AOS, applications for legal permanent residence based on marriage are treated the same regardless of whether the sponsoring spouse is a USC or LPR. That is, the couple bears the same burden of proof that the marriage is bona fide and that the foreign national is otherwise admissible to the United States.

4.7.2  Consular Processing

If the foreign national is physically present in the home country rather than the United States, the process of applying for immigrant status is called consular processing. This is because the adjudication of one’s application for residence in the United States will be performed at the U.S. consulate abroad rather than with at an immigration office in the United States. The issues that are unique to marriage-based petitions involving transgender individuals should be adjudicated the same way, however, whether the foreign partner is abroad or in the United States.

4.8  Application Components

This description of the application process will focus on adjustment of status applications of USCs, which seem to be the most common factual scenario for applications involving transgender spouses. Bear in mind that the procedure will be slightly different if the applicant is doing consular processing or if the applicant has married an LPR, not a citizen, but the law governing the recognition of the marriage and the application components are the same.

4.8.1  Immigration Forms

The primary components of a family-based legal permanent residence case are the Petition for Alien Relative (I-130) and Application to Register Permanent Residence or Adjust Status (I-485). The I-130 is technically filed by the USC on behalf of the foreign spouse, petitioning USCIS to grant the spouse an immigrant, or permanent, visa to the United States. This is the form that USCIS will adjudicate to determine whether the marriage is legally recognized. By way of contrast, the I-485 is the application by the foreign spouse for LPR status.

Even if USCIS approves the validity of the marriage and approves the I-130 petition, the applicant for adjustment must still prove that he or she is otherwise “admissible” in the I-485 application, meaning that, for example, he or she is not likely to become a “public charge,” has not committed certain crimes, and does not have a communicable disease of public health significance.

In addition to those primary forms, the marriage-based adjustment applicant also must submit a Biographic Information form (G-325) for each spouse; a Report of Medical Examination and Vaccination Record (I-693) for the foreign born spouse; and an Affidavit of Support on behalf of the foreign national (I-864.)[47]

Practice Tip: It is in completing the I-130 and the biographic information (G-325) forms that most likely, the transgender individual’s transgender identity will be disclosed. These forms require both spouses to list any other names they have ever used. In most cases, a transgender person’s birth name will sound like the name of a different-gendered person from the name the individual currently uses. Although it may seem tempting to simply omit mention of the prior name and not disclose the fact that one spouse is transgender, this is not advisable. Generally, committing fraud or even failing to disclose a relevant fact to USCIS can be grounds to deny an immigration benefit to an applicant. If your client is granted his or her green card while failing to reveal required information, he or she will never truly feel secure in his or her status because, if the deception later comes to light, one could be stripped of the immigration status.

4.8.2  Bona Fide Marriage Documentation

All marriage-based resident applicants must prove that their marriage is bona fide, that is, that it has not been entered into solely to gain an immigration benefit. Since marriages involving a transgender spouse are almost always going to come under particular scrutiny by USCIS, it is imperative to provide the strongest possible documentation of the bona fides of the marriage. Thus, along with the immigration forms, the couple must submit evidence that the marriage was not solely entered into for immigration purposes. This evidence should include proof of shared residence (joint mortgage or lease; joint utility bills; joint telephone bills; joint cable bills); proof of shared expenses (joint bills; joint credit cards); proof of shared income (joint taxes; joint bank accounts; accounts naming the spouse as beneficiary such as life insurance, retirement accounts, etc.); proof of shared childcare responsibilities (court-ordered second parent adoption or custody papers); and proof of a loving, committed relationship (wedding photos; photos that include extended family members; vacation photos; affidavits from family and friends, etc.) These documents should be well-organized and tabbed to make it as easy as possible for the officer to review them.

4.8.3  Opposite Sex Documentation

In addition to the documentation that all marriage-based petitioners must submit, couples that include a transgender spouse also must submit all relevant documentation to prove that the marriage is opposite sex. Thus, the transgender spouse should include medical evidence from a physician about any surgery or other medical steps taken to correct the gender. One also should include an amended birth certificate (if possible) and any other government-issued identification that reflects the corrected gender. If one has legally changed one’s name, the applicant or petitioner also must include the court order directing the name change.

4.8.4  Medical Examination

The purpose of the medical examination (Form I-693) is to ensure that the LPR applicant is not medically “inadmissible” to the United States—that is, that one does not suffer from any medical condition which might put the U.S. public health at risk—and to ensure that one has received all required vaccinations. Additionally, all LPR applicants must demonstrate that they are not “likely to become a public charge.” Thus, if the applicant suffers from a disabling medical condition that might impact the ability to earn a livelihood, the physician conducting the exam would probably make note of this. Generally, the medical examination includes a blood test and is quite cursory. The “green card” applicant schedules an appointment with a physician who has a contract with DHS to perform such exams and pays the fees for the exam. A few days to a couple of weeks after the exam, the applicant will return to the doctor’s office to pick up a sealed copy of the I-693 that must be filed with the application for adjustment.

Note: The physical examination is minimal and should not include any examination of the applicant’s genital area. If the physician appears to be conducting an inappropriate physical exam, the applicant should stop the exam and seek an examination from a different physician.[48]

4.8.4.1  HIV Ground of Inadmissibility

Under current immigration law, HIV positive status is a ground of inadmissibility to the United States.[49]Foreign nationals who test positive for HIV must, therefore, apply for a waiver in order to obtain legal permanent residence. Marriage to a USC or LPR means that the applicant has a “qualifying relative” for the waiver, but one also must submit further paperwork, including a waiver application (Form I-601); proof that the danger to the public health would be minimal if one is admitted; proof that the danger of the spread of infection is minimal; and proof that there will be no cost incurred by any level of government agency without the agency’s prior consent.[50]In practice, this means that one must submit an affidavit explaining that one understands how HIV is transmitted and will not engage in high risk behavior; a letter from one’s doctor explaining that he or she has been counseled about HIV transmission and is compliant with the HIV treatment regimen; and, generally, proof of private health insurance.[51]

4.8.5  Adjustment Interview

All LPR applicants through marriage must undergo an interview by an adjustment officer at USCIS. Both spouses must attend the interview. Generally, adjustment interviews last fewer than 30 minutes, and the officer asks the couple cursory questions about how they met, whether they know one another’s families, how long they have lived together, etc., and then spends some time going through the documentation with the couple. If the officer has reason to suspect marriage fraud, the couple can be scheduled for a second, more intensive interview during which the spouses are separated and are asked probing questions to help the officer determine the validity of the marriage.[52]

Practice Tip: It is likely that the officer will not have adjudicated a case before involving the validity of a marriage where one or both spouses are transgender. The attorney should write and submit a statement at the interview explaining how the marriage comports with the holding in Matter of Lovo-Lara and further explaining why the couple’s marriage should be considered an opposite sex marriage.

If the USCIS officer does not notice that one of the spouses is transgender, it may be tempting to gloss over the issue. This is not advisable, however. The fact that one of the spouses has legally changed his or her name or amended the birth certificate will almost always be evident in the “other names used” section of the immigration forms, or because the issue date of the birth certificate will be recent. Whenever there is a difficult immigration issue, it is best to address the issue head on. Odds are, the officer (or supervisor) will notice while reviewing the file later that one of the applicants has used a different name in the past or that some identity documents from the past are different from the current ones. If the officer feels that the applicant tried to commit fraud, the application may be denied. At best, the officer may schedule another interview, or issue a Request for Evidence seeking more documents, either way delaying adjudication of the case. It is better to be truthful about the issues in the case from the start of the adjustment interview so that counsel can explain his or her position fully to the officer.

4.8.5.1  Problems with the Officer

Most USCIS officers are professional in demeanor and will adjudicate the case respectfully. If the officer is unfamiliar with the legal issues, he or she should tell the couple that there is a need to discuss the case with a supervisor and that the couple will receive a decision in the mail. In the somewhat rare case where an officer is rude or makes inappropriate comments regarding the transgender identity of the applicant, counsel should immediately ask to stop the interview and ask to speak with a supervisor. The officer may protest against this, but an applicant or his or her attorney has the right to speak with a supervisor. The practitioner should be prepared to explain to the supervisor what the officer did or said that was inappropriate and ask for the supervisor to complete the interview or sit in on the remainder of the interview.

4.8.5.2  Follow-Up Process

Although the Lovo-Lara decision appears to provide definitive guidance on the adjudication of marriage-based cases involving transgender spouses—at least in cases where the petitioner has obtained an amended birth certificate and the marriage is recognized in the couple’s state—in reality, USCIS is still frequently failing to follow the BIA’s holding. A practitioner should expect that a marriage case involving a transgender individual may be wrongfully denied, or, at a minimum, delayed well beyond the adjudication time for other marriage-based cases.

4.8.5.2.1  InfoPass

The first step the practitioner should take if there is no decision rendered in the case within a reasonable period of time[53]is to schedule an InfoPass appointment.[54]The practitioner will then be able to check on the status of the application by speaking with a USCIS officer. In most instances, this appointment will not be very helpful and the officer will simply inform the practitioner that the case is still pending, but the practitioner still should follow this step in the “chain of command” at USCIS.

4.8.5.2.2  Supervisor Letter

If the InfoPass appointment does nothing to move the application forward, the practitioner should write a letter to the officer’s supervisor, describing the issues in the case, the delay, and that one has already attended an InfoPass appointment. If this letter yields no result, the practitioner should write to the next higher supervisor, all the way up to the district director, allowing a reasonable period of time to pass between each step.

4.8.5.2.3  AILA Liaison

Finally, if neither the InfoPass appointment nor the letters to supervisors have yielded a result, a practitioner who is an American Immigration Lawyers Association (AILA) member may use the AILA liaison process where the member submits a special form to the district office through the AILA liaison committee. Although this process is available only to AILA members, and only within some districts, it is quite helpful in resolving individual cases when all regular USCIS channels have failed.

4.8.5.2.4  BIA Appeal

If the petition is denied, the practitioner may appeal the decision to the BIA. The practitioner should bear in mind that the AOS application is not appealable, that is, if the applicant’s LPR application is denied because, for example,one is found to be likely to become a public charge, there is no appeal.[55]However, the petition for an IV (I-130), which seeks to establish the qualifying relationship for the immigration benefit, is appealable to the BIA. Thus, if the district office denies the petition on the ground that the marriage is prohibited under DOMA or is not truly an opposite-sex marriage, the decision may be appealed to the BIA.

4.9 Conditional Residence

For all marriage-based immigration petitions, if the marriage was entered into fewer than two years before residence is granted, the foreign national receives “conditional residence.”[56]This means that the foreign national is granted legal permanent residence, but only for a period of two years. Beginning 90 days before the second anniversary of the “green card” approval, the couple must file a Petition to Remove the Conditions of Residency (Form I-751). Further evidence of the bona fides of the marriage must be submitted along with the form.[57]The couple may be scheduled for a second interview to remove the condition. Whether a second interview is required may depend on local practice, whether there are any problems the officer sees with the case, or simply from a random audit. Also, the better the couple is able to document that the marriage continues to be bona fide (through further submission of shared bills, assets, photos, etc.), the less likely that a second interview will be required.

Practice Tip: The purpose of the application to remove the condition on residency is to demonstrate that the marriage was valid when entered into. It is unclear how USCIS would handle cases where the couple was considered opposite sex at the time of the initial interview, but where the couple has become same-sex (that is, one of the spouses has medically transitioned) since the first interview. Be prepared to make the argument that the marriage was valid when entered into and that it, therefore, meets the definition of a bona fide marriage under the INA.[58]

4.10  Naturalization

Spouses of USCs also are able to apply to naturalize as U.S. citizens on an accelerated track. Whereas LPRs must generally wait five years before they are eligible to seek U.S. citizenship,[59]spouses of USCs may apply to naturalize three years after their “green card” is granted.[60]In order to take advantage of this speedier application, the applicant must prove that he or she is still married to the USC and that the couple has been residing together for at least three years immediately prior to the filing of the application.[61]Again, if the couple was considered opposite sex at the time of the marriage but one of the spouses has transitioned since that time, the practitioner should be prepared to argue that the only relevant inquiry is the validity of the marriage at the time it was entered into.

Practice Tip: There is no requirement that the spouse of a USC apply to naturalize using this “fast track,” so if the transgender spouse has transitioned after receiving the “green card,” it may be easier to wait another two years and apply to naturalize under the regular track where the underlying marriage will not be an issue in the application.[62]

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