The way in which transgender individuals have been treated in marriage-based green card petitions has changed dramatically over the last 10 years. On April 16, 2004, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum stating that it would not recognize marriages for immigration purposes where if someone “claims to be transsexual.” In May of 2005, however, the Board of Immigration Appeals (BIA) issued a very positive decision called 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 one ore more spouses are transgender.
The guidance below is largely intended to assist individuals who do not have access to a marriage equality state. If a couple marries in a state that recognizes both same-sex and opposite-sex marriages, gender becomes less legally important. However, couples may still have to submit evidence about their medical/legal transition in order for the U.S. government to issue identity documents reflecting the appropriate gender.
What does the guidance require for marriage-based petitions?
For states that do not recognize marriage equality. the guidance will approve benefits based on marriage where:
- The transgender individual has legally changed their 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 under 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 they have 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
- Letter from a licensed physician (M.D. or D.O. only) confirming the individual’s accurate gender identity.
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. We did not wed in a marriage equality state. 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 that person from obtaining a 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.)
I do not live in a marriage equality state. Can I submit a fiancé(e) visa petition for my partner abroad under these guidelines?
Yes, if the transgender person meets the above guidelines (i.e. at a minimum a doctor has certified the gender transition), then the U.S. citizen partner can submit a K visa application. If the U.S. citizen lives in a state that would not view the marriage as valid and opposite sex, USCIS will inform the couple that they must choose another state to marry in. The U.S. citizen should then write a short statement indicating in which LGBTQ friendly state they intend to marry.
How do I know which states will recognize my marriage?
This is a complicated legal question and one where the law changes frequently. 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. You can also see this chart: Where Can We Marry?
Marriage-Based Immigration Cases
Can I bring my transgender partner over to the U.S. on a fiancé(e) visa?
The same rules apply for fiancé(e) visas as for marriage-based petitions. If the state where the U.S. citizen partner lives recognizes marriages where one of the spouses is transgender, it should be possible to bring the foreign fiancé(e) to the U.S.