By Matt Wood, Staff Attorney
In a tremendous victory for transgender immigrants and their families, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum on April 10, 2012 permitting transgender people to change the gender designation on their immigration documents so long as they have a signed doctor’s affidavit stating that they have had “appropriate clinical treatment.” The new policy matches the standard used to change the gender marker on a U.S. Passport or Consular Birth Certificate, and updates the Adjudicator’s Field Manual, which is binding all USCIS staff overseeing immigration procedures.
Importantly, the Policy Memorandum also includes guidance about the recognition of marriages for bi-national couples with a transgender spouse. Currently under U.S. immigration law, if a couple is married for fewer than two years when the U.S. citizen applies for the green card for his or her spouse, the spouse receives a conditional green card and must apply to remove the condition two years later to make the green card permanent. The memorandum makes clear that if a couple got married as a different-sex couple under state law, and the foreign spouse receives his or her conditional green card, the subsequent transition of one of the spouses (making the couple present as same-sex) will not prevent USCIS from removing the condition and granting a permanent green card.
The policy also affirms that USCIS will look to the law of the state in which a different-sex marriage is performed in order to determine its validity. As a result, it may be possible under the new policy for a U.S. citizen to apply for a visa for their non-citizen fiancé/e, where a member of the couple is transgender, regardless of whether the transgender person has had sex reassignment surgery, as long as the couple is planning to marry in a jurisdiction that would recognize both the person’s gender change as valid, and their marriage as a valid and different-sex. If the couple lives in a jurisdiction which does not recognize either gender change or marriage with a transgender spouse, the policy permits the couple to present an affidavit attesting that the marriage will take place in another jurisdiction.
The Policy Memorandum is interim but is effective immediately. It is available on the USCIS website (pdf).
Links to more info on partner organization websites: