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it would seem that both the official line of the Administration and the popular line of the media are substantially outdated.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.