In an interoffice memorandum, William R. Yates, Associate Director for Operations of the U.S. Citizenship and Immigration Services (CIS) announced that in its adjudication of spousal and fiancé petitions, the agency would not recognize a marriage or intended marriage where either party claims to be a transsexual.  Whether or not either party plans or actually undergoes sex reassignment surgery has no bearing on this decision.  The CIS adopted this approach to create nationwide consistency in lieu of varying state treatment of marriages involving transsexual applicants.  Some states issue a new birth certificate to a transsexual who undergoes sex reassignment surgery, which then enables that individual to obtain a marriage license.

Federal law determines the recognition of a marriage for immigration purposes.  The Defense of Marriage Act prohibits recognition of a same sex union as a “marriage” for immigration purposes, even if a state issued a marriage license to a homosexual couple.  Although neither this statute nor any other federal law discusses the legal status of a transsexual’s marriage, the CIS has followed its predecessor, the INS, by refusing to recognize a marriage where one party has undergone sexual reassignment surgery.  The agency requires exclusive recognition of an applicant’s gender as listed in his or her A-file unless the applicant presents a federal court order directing CIS to change its records.  The memo instructs CIS officers to follow objective indicators regarding name changes.  If an individual claims a different name than that in his or her A-file, which is typically used by the opposite sex, the officer should issue a request for evidence to establish an applicant’s identity.

In all other kinds of cases where gender does not play a central role in the adjudication of applications and petitions, CIS will not consider an individual’s claimed transsexuality.  Any documents will indicate the applicant’s gender at the time of issuance, so long as the individual submits the proper medical and other documentation of the new gender and legal name.  Unlike spousal and fiancé petitions, other types of adjudications no longer require an applicant to present a federal court order directing CIS to change its records when claiming a different gender than that in the A-file.  A non-citizen who requests a replacement document to indicate a name change after sex reassignment surgery must submit both the birth certificate issued at birth and the newly issued one reflecting the sex reassignment as well as the court order granting the legal name change.