AuthorAlly Windsor Howell
ProfessionFormer practicing lawyer from Alabama
U.S. law does not explicitly prohibit transgender people from visiting or
immigrating to the United States. Transgender people should face no sig-
ni cant or systemic dif culties in obtaining the vast majority of visas (e.g.,
tourists, students, employees of a company based in the United States).
Many transgender people have immigrated to the United States due to
their marriage to a U.S. citizen or permanent resident. However, due to the
legal dif culties that some transgender people occasionally face in getting
recognition of their marriage, couples in which one partner is transgender
are strongly encouraged to seek legal information and advice before apply-
ing for marriage-based immigration. See Chapter 6, “Family Law,” § 6.1
“Marriage.” Immigrants in the U.S. face a range of challenges and hostili-
ties, and the current broken immigration system violates basic standards
of decency through inde nite detention, separation from partners, and the
denial of medically necessary health care. Because of sometimes-unclear
documentation, challenges to their marital status, and blatant discrimina-
tion, transgender immigrants face additional hardships.
Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat.
2419, 2419 (1996), 1 U.S.C.A. § 7, is no longer an impediment to the recog-
nition of lawful same-sex marriages and spouses under the Immigration and
Nationality Act if the marriage is valid under the laws of the State where it
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was celebrated. It was declared to be unconstitutional by the U.S. Supreme
Court in United States v. Windsor.
The Board of Immigration Appeals has
begun recognizing and applying the Windsor decision in immigration cases.
§11.1 Asylum Statutes and Regulations
Anyone who is in the United States and has been harmed, or fears harm,
in their home country because they are transgender, or because they don’t
otherwise conform to gender norms, should strongly consider applying for
asylum. Legally, the past harm, or fear of harm (called persecution), has to
come from the government, or an agency that the government will not or
cannot control in the person’s home country. The fear also has to be “legiti-
mate,” which means that asylum applicants must provide some evidence
of the harm they have suffered, harm that other people like them have suf-
fered, or the existence of a policy or practice that would facilitate such harm.
Asylum is available to people who fear harm based, at least in part, on
their race, religion, nationality, membership in a particular social group,
or political opinion. Many transgender people have received asylum in the
United States because, in their individual case, being transgender or gender
nonconforming has been found to be a part of a particular social group.
Asylum allows a person to stay in the United States, receive a work permit
and public bene ts, and eventually apply for a green card.
Under the Immigration and Nationality Act,
the Secretary of Homeland
Security or the Attorney General may grant asylum to an alien who has
applied for asylum in accordance with the requirements and procedures
established by the secretary of homeland security or the attorney general
under this section if the secretary of homeland security or the attorney gen-
eral determines that such alien is a refugee.
On December 6, 2011, President
Obama issued a Presidential Memorandum that provides:
Those LGBT persons who seek refuge from violence and persecution
face daunting challenges. In order to improve protection for LGBT
1. United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675 (2013).
2. See e.g.: Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013).
3. 8 U.S.C. § 1101, et seq.
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