Transformation: the Progression of Immigration Petitions for Transgender Spouses

• DOI: http://doi.org/10.1111/j.1744-1617.2012.01485.x
• Author: Elanie J. Cintron
• Date: 01 October 2012
• Published date: 01 October 2012

STUDENT NOTE FOR THE SPECIAL ISSUE

TRANSFORMATION: THE PROGRESSION OF IMMIGRATION

PETITIONS FORTRANSGENDER SPOUSES

Elanie J. Cintron*

U.S. citizens who marry foreign nationals may petition for their spouses so that the couple can reside permanently togetherin

the United States.The guidelines set for th 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. immigra-

tion 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 individualizedguidelines 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

Keywords: Binational;Bisexual;Gay;I-130;Immigration;Lesbian;Marriage;SexReassignment Surgery;Spousal Petition;

and Transgender.

I. INTRODUCTION

Meet Jack and Jill.1Jack and Jill went up the hill and fell in love. Jill is a national ofAustralia and

met Jack ten years ago while Jack was studying abroad in Australia.The couple was legally married

in New Jersey five years ago. They adopted a child two years ago and own a house together with a

white picket fence. The couple looks forward to the day when they do not have to worry about Jill

being forced to leave the country because her legally permitted time in the United States has expired.

Since the beginning of their relationship, Jill has visited the United States on various visas. Every time

Jill enters the United States, she is only permitted to stay for a fixed number of days before she is

required to leave the United States—and her family—and return to Australia.

The couple’s dream is for Jill to become a permanent resident of the United States so that they no

longer have to worry about the date at which her visit must end. In an effort to keep his familytogether,

Correspondence: ecintron05@gmail.com

FAMILY COURT REVIEW,Vol. 50 No. 4, October 2012 666–678

© 2012 Association of Familyand Conciliation Cour ts