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Keywords:

  • Binational;
  • Bisexual;
  • Gay;
  • I-130;
  • Immigration;
  • Lesbian;
  • Marriage;
  • Sex Reassignment Surgery;
  • Spousal Petition;
  • Transgender

U.S. citizens who marry foreign nationals may petition for their spouses so that the couple can reside permanently together in the United States. The guidelines set forth in the U.S. Citizenship and Immigration Services Adjudicator's Field Manual provide guidance to immigration officials for determining whether to grant or deny spousal petitions. Previously, the Adjudicator's Field Manual imposed a requirement that transgender individuals undergo costly and dangerous sex reassignment surgery in order to qualify as married for the purposes of a spousal petition. However, revisions to the Adjudicator's Field Manual issued in April 2012 provide transgender binational couples the opportunity to remain together in the United States without forcing one partner to undergo sex reassignment surgery. Given the history of discrimination against transgender individuals under U.S. immigration law, these revisions are a significant step in equality for transgender couples. Although these revisions provide many transgender binational couples with a means to remain together in the United States, this Note proposes that, to continue on the path toward equality for transgender couples, special guidelines should not be applied to marriages involving transgender partners if their marriage is deemed a valid heterosexual marriage in the state where solemnized. The goals of U.S. immigration law and compliance with the federal definition of marriage can be achieved without implementing individualized guidelines for transgender binational couples.

Key Points for the Family Court Community:
  • Transgender spouses of a binational couple should not be subjected to additional guidelines when submitting spousal petitions that, if granted, would afford the couple the opportunity to reside together in the United States
  • Transgender individuals should not be subjected to disparate treatment solely because the U.S. Citizenship and Immigration Services seeks to enforce discriminatory provisions of the Defense of Marriage Act
  • A marriage should be recognized by immigration law if it is a valid marriage under the law of the state where the marriage was celebrated
  • In order to achieve U.S. immigration law's mission of family unification, nontraditional couples should be afforded the same opportunity to remain together in the United States without additional scrutiny