Same-sex spouses or partners of United States Citizens and Legal Permanent Residents will need to obtain an appropriate visa in their own right. Some of the options to do so could include investing in a business in the United States, a transfer from a foreign employer to an affiliated United States employer, finding United States employment sponsorship, or enrolling in an approved education or training course. Each of these options needs to be fully evaluated against the qualifications and circumstances of the same-sex spouse.
II. Transsexual Marriage
A marriage in which the two parties were born the same-sex, but where one party underwent gender reassignment surgery, may entitle the spouse to immigration benefits. The Board of Immigration Appeals held in the Matter of Lovo-Lara that DOMA did not apply to transsexuals in a heterosexual relationship based on post-operative gender. Therefore, the analysis of whether the marriage is recognized turns back to the validity in the jurisdiction of the marriage.
The controlling test in determining whether such marriages are recognized for immigration purposes is whether the marriage was considered a valid and heterosexual marriage in the jurisdiction where the marriage occurred. The marriage in the precedent case of Matter of Lovo-Lara, as an example, occurred in the state of North Carolina. The transsexual spouse obtained a permitted change of the sex on her birth certificate following her gender reassignment to female and then married her male husband. The court noted that North Carolina registered their marriage as legal, but that same-sex marriage is not legal in North Carolina. Thus, the marriage was both considered heterosexual and valid in North Carolina, and the spouse was entitled to immigration benefits.
A number of US states, as well as foreign countries, have legal precedent as to whether such a marriage is valid and heterosexual in that jurisdiction. In reviewing whether the marriage is valid and heterosexual, it is important to note that some jurisdictions, including Illinois and Texas, allow a post-operative transsexual to change the gender on their birth certificate, but do not recognize the gender reassignment as changing the individual’s sex for purposes of marriages. Also, a marriage in which one party is a post-operative transsexual may be recognized in some jurisdictions as a valid marriage, but still as a same-sex marriage. The registered same-sex scalp massager benefits would not recognized for immigration purposes per DOMA.
In many jurisdictions the statute is not clear or there is no binding precedent. In such case, USCIS may be satisfied as to the validity of the marriage through submission of a court order, official record, or statement from an appropriate government agency indicating that the gender reassignment surgery has resulted in a change of the person’s legal sex under the law of the place of the marriage.
Accordingly, the marriage of two parties who were born the same-sex may be recognized for immigration benefits if all of the following are satisfied:
III. Common Law Marriages
An actual marriage between two people made without formal registry, often known as a common law marriage, is recognized for purposes of immigration benefits only if common law marriages are recognized in the jurisdiction where the unregistered marriage took place. In reviewing the validity of these marriages, USCIS and DOS will look first to determine if common law marriages were recognized by the jurisdiction at the time of unregistered marriage, and then as to whether the parties fulfilled all of the requirements of the jurisdiction to create a common law marriage, such as mutual agreement, cohabitation, etc.