Can a transgender spouse obtain a green card based on marriage to a U.S. citizen?

You heard right about current law: It (specifically, the federal Defense of Marriage Act, or DOMA) does not allow for recognition of a same-sex marriage for immigration purposes. That includes cases where one spouse identifies as another gender but has chosen not to have surgery.

The rules on this could eventually change, given that DOMA has come under much criticism of late, and even the federal government has stopped enforcing it in certain contexts. Nevertheless, as of early 2013, your spouse-to-be's lack of a right to a green card is pretty clear.

The green card possibilities are far greater in instances of marriages where one spouse has undergone sex-reassignment surgery, such that the person is legally recognized as a member of the opposite sex. Transgender foreign nationals have, in fact, recently been awarded green cards based on their marriages to U.S. citizens of the now-opposite sex. And other foreign nationals have obtained green cards where the U.S. citizen was the one to have undergone surgery.

But such a result is far from automatic – and some such green card applications are still being denied. The best chance of success occurs in cases where:

•  -- the marriage is considered legally valid in the country or U.S. state where it occurred (crucial for any green-card-based marriage case), and
•  -- the transgender spouse’s identity documents, such as passport and birth certificate, have been changed to reflect the gender switch.

You won’t be surprised to hear that such cases don’t come up often. The current policy has largely been formed by the Board of Immigration Appeals (BIA), after applicants filed appeals of their denials by local offices of U.S. Citizenship and Immigration Services (USCIS). You are not guaranteed to find a sympathetic officer at the local USCIS office. Not even the U.S. federal courts have yet weighed in on this matter, though it’s probably only a matter of time.

Again, this is an area of the law that is in flux. Talking to an experienced immigration lawyer BEFORE you make any gender-changing decisions or get married would be an excellent idea, to make sure you choose the most advantageous place for the marriage and develop a suitable strategy based on the latest legal news.