Marriage-based Green Cards and Transgendered Persons

transgender.gif There has been a great deal of recent internet discussion about Bruce Jenner’s transition to a new identity as Caitlyn. I want to congratulate Caitlyn Jenner and address some questions about transgender people and immigration. There has been a small flood of calls today at both the Pasadena and Palm Springs offices of the immigration law offices of Fong & Aquino, in response to the Vanity Fair cover photo and article introducing Caitlyn.

In the bad old days, before Section 3 of the Defense of Marriage Act (DOMA) was struck down as unconstitutional by the Supreme Court of the United States in the 2013 landmark case of US v Windsor, same-sex marriages were not recognized under Federal law. If two men wanted to marry — even if their marriage could be legally performed in, say, Canada or Massachusetts — the US government refused to recognize that marriage, and no Federal benefits would attach to that relationship. This included a US citizen wanting to obtain legal resident status (the so-called “green card”) for a foreign spouse. A same-sex couple was not recognized, and no green card was possible.

In the case of a relationship with a transgender person, US Citizenship and Immigration Services (USCIS) took a simplistic, it’s-just-about-plumbing approach. As long as one spouse had cosmetically male anatomy, and the other had cosmetically female anatomy, then the marriage would be recognized — no matter how far along the transition might be — and the marriage would result in a green card for the foreign spouse. This led to a number of unique cases in which a male-female couple would rush to get the green card, and after the green card was issued, the transgender spouse would feel free to finish the transition. Or waiting until the transition was complete, in order that the green card case could go forward. Many other, sometimes difficult, scenarios have played out in my 30+ years of legal service in the community.

Today, because Section 3 of DOMA is quite unconstitutional, these types of difficult situations are no longer necessary. A US citizen can today apply for a foreign spouse, whether that spouse is male or female; gay, lesbian, or straight; transgender or cisgender. Period.

As the anniversary of US v. Windsor comes at the end of June, let us remember where we have been and celebrate the progress that has been made for the community. If you should have questions regarding a getting a green card through marriage, please contact a competent immigration attorney to have your questions answered. –jcf