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

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Question:

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?

Answer:

Couples with transgender spouses can now rest easy about their marriage-based rights under U.S. immigration law and various Supreme Court rulings.

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 meant that, if the steps the transgender spouse has taken toward sex reassignment were not medically sufficient to convince the immigration authorities that the couple were in an opposite-sex relationship, the noncitizen spouse could 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.

But the matter may have become completely moot in 2015, with the Supreme Court's ruling in Obergefell v. Hodges. This stated that same-sex marriage must be allowed and recognized all across the United States. As many commentators put it, it's just "marriage" now, regardless of gender. 

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