U.S. Recognizes Binational Marriages with Trans Spouses

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(Photo: Frozen Canuck/flickr)

The transgender community and its allies are welcoming a new U.S. immigration policy that recognizes heterosexual marriages in connection with green card petitions when one member of the couple is a transgender individual.

U.S. Citizenship and Immigration Services (USCIS) issued an interim memorandum spelling out the new policy last week.  The memo updates the Adjudicator’s Field Manual, a guide binding all agency staff overseeing immigration procedures.  It was released for comment and is in effect until further notice from USCIS.

USCIS will now issue immigration documents which reflect an individual’s gender identity, as long as they present “an amended birth certificate, passport, or court order recognizing their new gender; or medical certification of the change in gender from a licensed physician.” The memo points out that these criteria are “based on standards and recommendations of the World Professional Association for Transgender Health who are recognized as the authority in this field by the American Medical Association.”

USCIS will also approve green card petitions for the spouses of American citizens or permanent residents if the petitioner establishes that the transgender individual has legally changed their gender and subsequently married an individual of the opposite gender; the marriage is recognized as a heterosexual marriage under the law where the union took place; and the law where the marriage took place does not bar unions between transgender individuals and persons of the other gender.

The directive explicitly says that gender reassignment surgery “is not required in order for USCIS to approve” petitions “unless the law of the place of marriage clearly requires sex reassignment surgery in order to accomplish a change in legal gender.”

The National Center for Transgender Equality (NCTE) and Immigration Equality, advocates for transgender rights, applauded the development. The organizations have been working in tandem to advance these urgently needed policies, part of a comprehensive agenda for the fair treatment of transgender immigrants.

NCTE Policy Counsel Harper Jean Tobin said Friday.

“Today’s announcement is another example of the Obama Administration’s long-term commitment to equality. These revisions mean that trans people and their families can obtain accurate identification while maintaining their privacy. It’ll also reduce bureaucratic delays, intrusive questions, and wrongful denials of immigration benefits.”

“This Guidance is an important step forward for transgender immigrants and their families. It brings USCIS in line with DOS (U.S. Department of State) in its guidance for updating gender markers on identity documents – no longer requiring any specific surgery, but instead allowing a doctor to certify the individual’s gender,” added Victoria Neilson, Legal Director for Immigration Equality. “The memo affirms existing law and precedents, and recognizes that if a marriage is considered valid and opposite sex under state law, it is valid for immigration purposes.”

This is certainly a step in the right direction and the administration should be given credit for taking this move, but it leaves gay binational married couples, who are not afforded immigration benefits because of the Defense of Marriage (DOMA), in the cold. Some of these couples include a spouse who is transgender.

Tobin acknowledges the long path ahead. “While these two revisions aid some trans immigrants and their U.S. citizen spouses, and vice-versa, the revisions only highlight the need to eliminate the discriminatory Defense of Marriage Act.”

You can follow Erwin de Leon on Twitter or read his blog.

Fi2W is supported by the New York Community Trust and the John S. and James L. Knight Foundation with additional support from the Ralph E. Odgen Foundation and the Sirus Fund.

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