IMMIGRATION UPDATE: U.S. Government Now Giving Green Cards for Gay Marriage

During the course of the ongoing Comprehensive Immigration Reform debate, media outlets have called attention to the plight of Americans in same sex relationships who, it is claimed, have no means of petitioning for the legal immigration of their partners.  See for example one recent Seattle Times article at: http://seattletimes.com/html/localnews/2020501363_lgbtimmigrationxml.html.  Recently, the Obama Administration has made the inclusion of provisions for same sex immigrants part of their proposal for the complete overhaul of America’s immigration system.  However, it would seem that both the official line of the Administration and the popular line of the media are substantially outdated.  U.S. Citizenship and Immigration Services (USCIS) has permitted the issuance of green cards to same sex spouses since 2012.

Did you miss the news?  If so, this was likely because the change was neither widely publicized in popular outlets nor fully understood by commentators.  This change was made by means of a policy memorandum containing updates to the Adjudicator’s Field Manual (AFM), the desk reference used by the USCIS officers who adjudicate immigration petitions.  See Policy Memorandum (PM) 602-0061 here: http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Interim%20Guidance%20for%20Comment/Transgender_FINAL.pdf.  As noted in the memorandum, USCIS had previously conferred immigration benefits based on marriages including a transgendered spouse after receiving a medical certification verifying that the person in question had undergone sex reassignment surgery (a “sex change operation”).  This would seemingly have created a significant emotional and financial barrier for anybody who might assume a new sexual identity simply to marry a U.S. citizen and immigrate — undergoing irreversible reconstructive genital surgery is a rather high price to pay.

However, the procedural guidance in PM 602-0061 eliminates the requirement for any evidence of sexual reassignment surgery, requiring only a certification from any licensed physician affirming that the subject has completed “appropriate clinical treatment” in order for immigration officers to treat the person as having assumed their desired gender.  Like the Department of State’s guidance allowing U.S. passports to be issued with self-selected gender markers (see my previous article here: https://johnqpatriot.wordpress.com/2013/03/12/applying-for-a-u-s-passport-choose-your-own-gender/), this USCIS procedural change incorporates the suggestions of the World Professional Association for Transgender Health (WPATH).  This advocacy group, little known to the U.S. public, advocates such measures as providing hormone therapy to prepubescent children who are experiencing “gender dysphoria” in order to “delay the physical changes of puberty” and give them time to think about which gender they want to choose.  You may reasonably assume I have exaggerated their position, but I have not.  See their Standards of Care at: http://www.wpath.org/documents/SOC%20V7%2003-17-12.pdf.

Per WPATH guidelines adopted by USCIS, the physician need not have any special competency in sexual or mental health matters.  According to the black letter rules of PM 602-0061, a dermatologist would technically suffice.  While many U.S. physicians might shy away from providing such a memorandum to a casual walk-in client, this is not the case in many source countries for U.S. immigration.  Reportedly, in many developing world affidavits of almost any type may be procured from low-paid local physicians for less than $100.  Amazingly, most of these foreign physicians are not authorized to conduct the mandatory physical exams performed to assess the health of potential immigrants, yet their statements are considered credible enough to bind the U.S. Government to an applicant’s latest choice of gender identity.  Local attorneys specializing in U.S. immigration law can assist less sophisticated applicants in locating a physician willing to sign the required statement.  Once such a note is obtained, USCIS officers are explicitly forbidden from asking an applicant any further questions about the legitimacy of their newly chosen gender identity.  The doctor’s word is to be taken as final.

Put simply, once you have decided to immigrate to the United States, your gender is whatever you want it to be.

As with all USCIS petitions for spouses and fiances, a few constraints exist.  If a couple is already married, their marriage must be a “valid heterosexual marriage under the laws of the jurisdiction in which it was contracted.”  In the case of fiances, the couple must identify the state in which they intend to be married so that USCIS can verify their union would be recognized as a heterosexual marriage there.  However, this simply means that the self-asserted genders of the two partners must differ — they can both be members of the same anatomical sex, if state law does not explicitly forbid it.  Of course, you can choose to live in a different state than the one in which you are married in the event that your home state prohibits such marriages.  Thus, any person in the world can marry any U.S. citizen, regardless of gender, and settle legally in any state of the union they choose, regardless of that state’s marriage laws.

As a practical matter, a hypothetical gay American man who wishes to bring in his partner from overseas can file a immigration petition using the same basic procedures as any heterosexual.  The minor difference is that he will need his foreign partner to find a local doctor who is willing to sign an affidavit verifying that he (now “she,” for immigration purposes) has assumed a female gender identity.  It is not required that he then procure a birth certificate or passport in the new gender — even if his foreign birth certificate and passport indicate that he is male, he will be treated as female by USCIS based on the physician’s affidavit and the applicant’s own assertions.

The more militant among the gay activist community will likely object that this is degrading and that they should not have to pretend to be another gender in order to immigrate.  I will not address the merits of that position, but USCIS apparently anticipated this objection and addressed it indirectly with this legalese footnote: “For an individual who transitioned gender subsequent to a grant of conditional permanent residence, adjudication of a Petition to Remove the Conditions on Residence does not require the validity of the marriage at the time of filing or adjudication….”  In plain terms, your immigration status is not affected if you transition to a new gender after arriving in the U.S.  Thus, if you were the hypothetical foreign gay man described above who assumed a new female identity in your home country, you can immigrate to the U.S., marry your partner and then experience a new transition back to a gay male identity.  In the end, you would be gay, male and married to your partner and would not lose your Green Card even if the state in which you were married would have forbidden the union under the latest factual circumstances.  Convoluted, perhaps, but a little ideological compromise now pays great dividends in the long run.

I hope this article has helped some of my readers understand degree to which agencies have effectively granted themselves legislative powers under the guise of routine regulatory revisions.  The Obama Administration has essentially won the gay marriage immigration battle before it was fought, simply by redefining unions that would previously have been regarded as homosexual in nature as heterosexual, regardless of the birth sexes of the parties.  When you can create your own facts, it matters little how the laws are written.

Please note that since PM 602-0061 only changed an agency’s regulatory operating guidance, it is not part of U.S. statutory law and the procedural guidelines discussed above would be nullified in the event that any contrary law is passed by Congress.

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7 comments

  1. Wanda Overman

    I have searched USCIS site and there is no information to verify that same sex couples can be issues green cards.

    • johnqpatriot

      Wanda,

      Reread the revision to the AFM. Many (perhaps most) immigration attorneys do not understand how it works, because this revision was trumpeted as being of special importance to transgender people, which even some attorneys believe to mean “post-operative transsexual.”

      In a couple made of two females, one of the females simply needs to see a physician (any licensed MD qualifies) and obtain a signed letter stating they have a patient-client relationship and that she, now “he,” has assumed a male gender identity.

      That note alone is considered proof that the person is now male — USCIS officers are essentially barred from making any further investigation into the matter once the signed doctor’s affidavit is received.

      The couple can then proceed, despite their anatomical similarity, as a heterosexual couple in the eyes of USCIS so long as their union would be considered a heterosexual (i.e., two genders represented) marriage in the state where it is contracted.

      Afterwards, the “male” partner is allowed to resume a female identity. When the alien appears after 2 years for removal of the conditional status of their green card (assuming this is a new “marriage”) USCIS cannot use the fact that the couple is now homosexual (i.e., one gender represented) as a reason for denying any immigration benefit.

    • Anonymous

      I am one half of a binational married same sex couple. We applied for my green card, and was denied and issued a deportation letter. BIA stepped in a remanded back to immigration department, who wrote a letter saying under DOMA we never been issued a green card.
      Trust me… When I say. No one is getting a green card until the scotus over turns the current law.

      • johnqpatriot

        Anon:

        Did you read the entire article and the AFM?

        DHS implemented a DOMA workaround. People are already being issued green cards simply by presenting a doctor’s note stating that one of them is living under their newly chosen gender, thus rendering the couple heterosexual in the eyes of immigration officials. Previously, surgery would prove one to be “transsexual.” Now, one need not have surgery. A mere statement by a physician than one has transitioned is enough to become one’s gender of choice. Immigration officials are specifically prohibited from making any further inquiry about how that transition took place, and what (if any) course of treatment was involved. Even a sports medicine doctor could give you the note.

        To be clear, I am not in favor of this and am among those who believe “marriage” always has and always will mean only the union of a male and female. I am also among those who do not believe anybody can choose to be anything but the sex God chose for them. But as it this provision is public information you have as much right as anyone to know.

        If course, if your pride in being a same sex couple does not permit you to utilize such a paper-based workaround, this will be of little interest to you.

        Regards,
        John Q.

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  4. Eliza

    Has an immigration officer for the last 7 years, I can say that you are living in a dream word. The product of your own imagination and phobias. But what can I say, you sound like the typical Republicrap. You over simplify the standing rules and laws to nothing more than a joke, and like others have stated, it’s not that simple.

    But I did enjoy your article because I needed to laugh this morning. You are a comedian and a rather good one with a wild imagination. Thank you for the article!

    The only problem I have with your comedy is that other phobics might read it and take your fictitious claims as facts. May be you should come into our department and teach us how to do our jobs. Because if we in actuality gave green cards to pretty much anyone applying for one, no questions asked, then our jobs would be so much easier and may be even fun. That would save us tons of paperwork to file and lots of writing.

    Even though I find your article comical, I do have to say that I’ve always felt that in some (only some) situations the claims made in affidavits obtained in other countries should be verified by a doctor in the US.

    In the case of validating a person’s sex (not gender), I as an officer would not care whether that doctor is a dermatologist, general practitioner, surgeon, OBGYN, or any other medical doctor. All MD’s (and DO’s as well) complete the same training before they move on to train in their desired specialty. I’m sure a dermatologist can examine a patient and verify if someone is female or male. If they are MD’s or DO’s and they are licensed to practice medicine, then to me it’s good enough.

    You attack the validity of sex change affidavits and not of other medical conditions. Sex change affidavits are not the only medical affidavits we get. It obvious to me that you are one of those anti gay and transsexual conservatives. Simply put a homophobic and transphobic person who hates the idea of such people migrating to the US. I feel sorry for you, because like Morgan Freeman said… “I hate the word homophobia. It’s not a phobia. You are not scared. You are a a**hole!”

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