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Can A Transgendered Person Obtain A Green Card Through Marriage?

Same-sex couples as well as transgender individuals have not always been treated equally in the eyes of the law or of the USCIS. It was only recently in this young century that changes equalizing their treatment have come about. Most notably, of course, is the U.S. Supreme Court decision ofHodges v. Obergefell earlier this year that levelled the playing field once and for all and legalized same-sex marriages in every state. Despite the proffered resistance of some county clerks in states that did not recognize same sex marriages, any couple, same sex or transgender, may now legally marry anywhere in the U.S.

Remarkably, the USCIS took the lead in recognizing same-sex marriages and marriages involving transgender spouses before this year. In 2005, the Board of Immigration Appeals (BIA) ruled that the service would recognize same-sex marriages that were valid wherever performed (Matter of Lovo-Mara). In 2010, the USCIS issued apolicy memorandumthat recognized a marriage in which one spouse is transgender or both are.

Since the U.S. makes no distinction now, a same sex or transgender spouse or couple should face no USCIS obstacles in this regard. The couple still, however, has to go through the green card process and interview before a USCIS officer to get approval for legal residency.

The Green Card

The prize for immigrants is the green card or permanent residency authorization, which is what you need before becoming a naturalized citizen. The joke now in vogue since LGBT couples can legally marry is: “The good news is that all LGBT spouses will be treated the same as heterosexual spouses; the bad news is that all LGBT spouses will be treated the same as heterosexual spouses.” This point underscores the complexities and difficulties that await transgender couples, just as with any other immigrant spouse of a U.S. citizen seeking a green card.

If Living Abroad

If you were in a civil arrangement in another country, the best advice is to get married. Any marriage that is valid in the place where the marriage occurred is valid in the U.S. for immigration purposes. If that is not practicable, then you can apply for afiancé visa.

If you are residing abroad, you file your initial visa application or the I-130. It can take up to a year for the USCIS to process it. Once it has been processed, you will have to go through a complex process and interview at the U.S. embassy consulate in your country.

Illegal Immigrants

For those immigrants who are in the U.S. illegally and either wish to marry a U.S. citizen or did marry one, the key detail is how long you have been here. If your time here has been 6 months or less, you should leave the country immediately and apply through a consulate for an immigrant visa. Because of the short duration that you were in the U.S. illegally, there should be no consequences affecting your application. If you have been in the U.S. illegally for more than 6 months, however, you face a 3-year prohibition on returning once you leave. You can apply for a waiver, but you will have to demonstrate “extreme hardship” for your American spouse, such as a serious medical problem.

Required Forms

If you are married, file Form I-130 along withForm G-325A wherein you are to provide the details to prove the bona fides of your marriage. If you petition for adjustment of status before your marriage is 2 years old, you will only get conditional permanent residency for 2 years. Before the 2-year term expires, you will then be required to file anI-751along with certain documents that prove you have continued to live with your spouse during the preceding 2 years.

Regarding the necessary forms, spouses of permanent residents as well as U.S. citizens will also need to file the following:

  • Adjustment of status withForm I-485
  • Medical report
  • Affidavit of Support (prove income is at least 125% of the poverty level)
  • EAD — employment authorization document
  • Advance parole

The USCIS Interview

The interview is necessary for USCIS officers to expose marriages that were entered into solely for the benefit of obtaining a green card. Although you may have filed the necessary forms, you will face skepticism by an officer who has any suspicions about the marriage.

This may be especially relevant for transgender couples. For example, what if you were in a previous heterosexual marriage and your application for a green card was denied? In other words, you will be questioned about your past relationships and will probably have to show proof that your past marriage was not a sham, as well as prove that your current one is a bona fide one. You will need to be totally prepared for the scrutiny that will occur.

Regarding proving at the interview that your current marriage is legitimate, bring along photographs from the ceremony, the wedding invitations, name of the caterer, photographer if any, and names of attendees. If your or your spouse’s parents did not attend, have a reasonable explanation for their absences.

Prior to the interview and shortly after getting married, enter into as many joint accounts as you can, such as bank accounts and leases. Be sure that your driver’s licenses reflect the same residential address and that utility statements, credit card statements and other paperwork have both of your names on them. Another good piece of evidence to bring is a life insurance policy with your spouse as beneficiary.

Typical questions will be directed toward how well you know your spouse and the circumstances of your meeting, dating and current living arrangement. Questions and topics to be prepared for include:

  1. Describing your home in detail—where appliances are located, toiletries, what cooking tools you have, the location of your refrigerator and describing what personal property is there
  2. What does your spouse eat for breakfast
  3. The last restaurant you both went to
  4. Who were the last visitors to your home
  5. Where was your spouse born? His or her birthdate and names of parents
  6. Where does your spouse work and what are the names of his/her boss and coworkers
  7. Where did you first meet? What was your first date?
  8. What is your spouse’s favorite sports teams? Least favorite?

One thing to remember is not to guess. If you do not know the answer, simply state that you do not know or do not recall. To be well prepared, meet with your immigration attorney and review the range of questions that could be asked as well as ensuring you have documents supporting your marriage’s validity

Lee, Green, Stewart & Paul Attorneys at Law regarding all of your visa and immigration concerns and questions. We are attorneys dedicated to helping immigrants acquire visas and to get on the path to citizenship. If you are a transgender spouse and have questions about the green card process, contact us today to discuss your situation and how we can assist you.