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

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I’m a U.S. citizen woman, and my fiancé, from Nigeria, was born female-assigned, but is a transgender man. Could I sponsor my fiance for a green card if he went ahead with gender-affirming surgery?


Couples with transgender spouses can now rest easy about their marriage-based rights under U.S. immigration law. The U.S. Supreme Court ruled in 2013 that the government can't deny federal benefits to spouses in legally recognized same-sex marriages, striking down a provision in the Defense of Marriage Act (DOMA) that defined marriage as only between a man and a woman. This means that, if the steps the transgender spouse has taken toward sex reassignment are not medically sufficient to convince the immigration authorities that you are in an opposite-sex relationship, the noncitizen spouse can qualify for a green card as a same-sex spouse.

Even before the downfall of DOMA in mid-2013, U.S. Citizenship and Immigration Services (USCIS) did approve green cards in instances of marriages where one spouse has undergone gender-affirming surgery.  Transgender foreign nationals have been awarded green cards based on their marriages to U.S. citizens or permanent residents of what the government considers to be the opposite sex. And other foreign nationals have obtained green cards where the U.S. citizen or permanent resident was the one to have undergone the surgery.

Pursuing a green card as a traditional straight marriage between a man and a woman is still an option for many couples in which one member has undergone gender-affirming surgery. It might be an attractive one for couples who live or want to get legally married in one of the states or countries that doesn't yet recognize same-sex marriage. However, in this case, the transgender person must be legally recognized as a member of the "opposite" sex.

If you are interested in pursuing a green card based on a an opposite-sex marriage, 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 or amended to reflect the gender switch, or the person can provide a doctor's letter or other medical evidence of a gender transition.

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 getting 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.

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