Primary Source Materials
This U.S. Citizenship and Immigration Services Memo lays out USCIS’s position on marriage-based petitions for legal permanent residence and on issuing immigration identity documents in the applicant’s corrected gender. See Yates’ Transgender Marriage Memo, April 04.
In May 2005 the Board of Immigration Appeals issued a precedent decision finding that a marriage where one spouse was a post-operative transsexual was valid for immigration purposes where the marriage was valid in the state in which it was entered into. This case was quite recent, and it is still not clear whether or not CIS will appeal. See Matter of Lovo-Lara Decision.
In January 2009, USCIS updated its Adjudicator’s Field Manual, section 21.3(j) purportedly to reflect the Lovo-Lara decision. However, in doing so, it added a requirement that was not in Lovo-Lara that the transgender spouse must have completed sex reassignment surgery. This “guidance” has created confusion as to what the requirements are for marriage recognition for immigration purposes.
In June 2010, the Department of State revised its guidance on correcting gender on U.S. passports. The guidance requires medical documentation, but specifically states that proof of sex reassignment surgery is not a requirement. 2010 DOS Transgender Passport Guidance
