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.
While the Lovo-Lara decision was excellent news for the transgender community, it is still unclear in many states and countries whether or not transgender individuals can legally marry. Making matters worse, in January 2009, USCIS amended its Adjudicator’s Field Manual (AFM) section 21.3(j) supposedly to reflect the Lovo-Lara holding, but it added a requirement that was not in Lovo-Lara that the transgender spouse must have had sex reassignment surgery.
If you or your partner is transgender and you are considering filing an application for immigration benefits based on your marriage, please contact Immigration Equality for the most current developments.
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.”
