Can't file a visa petition to immigrate your homosexual or lesbian lover? No problem! Just have either one of you get a sex change, get married in a state that recognizes transsexual marriages, and then the federal government will give you the green light to file the papers to immigrate your new "spouse" under Section 201(b)(2)(A)(i) of the Immigration Act.
It's all possible now thanks to the Department of Justice's Board of Immigration Appeals (BIA), an appellate body within the Executive Office of Immigration Review (EOIR) that is charged with hearing visa petition appeals from the Department of Homeland Security's Citizenship and Immigration Services (CIS) division.
The floodgates are now open for transsexual immigrants thanks to a recent decision by BIA members Edward R. Grant, Frederick D. Hess and Roger Pauley.
The EOIR's 3-bureaucrat panel decided to publish its decision in the case of Matter of Lovo (23 I&N Dec. 746 (BIA 2005)) on May 18. ("Published" BIA decisions are effective as precedent that must be recognized by the federal immigration bureaucracy – AKA: the DOJ and the DHS' immigration-related agencies.)
The Matter of Lovo decision recognized the validity of an immigrant visa petition filed by an American citizen who is a "post-operative male-to-female transsexual" (that is, a "he" born in North Carolina who became a "she" through medical science) in order to marry "her" male El Salvadoran husband.
The happy couple, Gia Teresa Lovo-Ciccone and Jose Mauricio Lovo-Lara, were married in North Carolina.
The BIA panel ruled that the recognizing transsexual marriage for immigration purposes was not precluded by the 1996 Defense of Marriage Act (Public Law No. 104-199), as long as the marriage was recognized by the state in which it took place.
Amazingly enough, the Garden State of New Jersey has recognized the validity of transsexual marriages under its laws since 1976, by way of a Superior Court, Appellate Division decision in M.T. v. T.J. (355 A.2d 204 (N.J. Super. Ct. App. Div. 1976)).
Other states have statutes specifically recognizing a legal change of sex after surgery.
The state of North Carolina issued the post-operative female Lovo a new birth certificate indicating female sex following "her" September 14, 2001, sex change surgery.
With Matter of Lovo now on the books, the BIA has now let a thousand transsexual immigration visa petitions bloom!
Ain't love grand?
Juan Mann [send him email] is a lawyer and the proprietor of DeportAliens.com.