As a Miami family-based immigration attorney, I had previously touched upon the effect of the United State Supreme Court’s ruling on the Defense of Marriage Act (DOMA). The U.S. Supreme Court ruled in 2013 that the government cannot 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, of course, opens the door to LGBT couples who wish to adjust status based upon their legally recognized same sex marriage.
However, what becomes of transgender spouses?
As it so happens, the ruling on DOMA also positive affects couples with transgender spouses. More specifically, 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. Of course, I would strongly urge transgender couples to speak with a Miami family-based immigration attorney, so that any and all potential issues can be sufficiently addressed before the filing of the application.
A Brief History on Transgender Couples
Even before the striking down of DOMA in 2013, the U.S. Citizenship and Immigration Services (USCIS) did issue approvals on 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.
Another Option for Transgender Spouses
For couples in which one member has undergone gender-affirming surgery, there is still the option of pursuing a green card based upon a marriage between a man and a woman. This may be a viable option for couples who live or want to get legally married in one of the states or countries that do not yet recognize same-sex marriage. However, in this case, the transgender person must be legally recognized as a member of the “opposite” sex.
Should you and/or your Miami marriage immigration attorney decide to pursue a green card based on a an opposite-sex marriage, keep in mind that the following marriages typically have higher chances of success:
- the marriage is considered legally valid in the country or U.S. state where it occurred, 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.
Applications are Discretionary
It bears repeating at this point that all immigration applications are discretionary. 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. This is an area of law that is in flux, and constantly evolving.
If you think would like more information on adjustment of status for transgender spouses, please contact Miami immigration attorney Michael G. Murray, Esq. at (305)895-2500 or visit our website at www. mmurraylaw.com