Transsexual Spouses and Immigration

NCLR provides assistance to immigration attorneys who represent married couples in which one of the spouses is transsexual. Marriage is a legal option for many transsexual people. Transsexual people who have undergone sex-reassignment are able to marry a different-sex partner in most states and many countries worldwide.

For decades, the immigration service appropriately treated these marriages the same way they treat others, which is to accept marriages that are valid where they are performed. In 2004, however, the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) issued a memorandum instructing immigration officers to deny all spousal and fiancé petitions filed by or on behalf of transsexual individuals. In 2005, the Board of Immigration Appeals (BIA) reversed this policy and held that marriages involving a transsexual spouse must be treated the same as others and thus can be the basis for immigration benefits, so long as the marriage is valid where enacted. Because of this decision, the USCIS must follow the BIA's instructions to approve spousal and fiancé applications involving valid marriages in which one or both of the spouses are transsexual. Please contact NCLR if you are experiencing difficulties in the adjudication of an application for permanent residency based on a marriage involving a transsexual spouse.