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
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
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.
Immigration Law Basics
Getting a Visa, Green Card or Asylum
How to Get a Green Card
How to Become a U.S. Citizen
Facing Deportation or Removal
Family Sponsors Petitioning for Immigrants
Employers Sponsoring Immigrant Workers
How to Get a Green Card
Becoming a U.S. Citizen
Fiance & Marriage Visas
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