Binational Couples


In immigration law, DHS must respect any marriage that is considered valid in the applicant's home country and is not contrary to public policy.1 In the past, because of the Defense of Marriage Act’s (DOMA) provisions recognizing only opposite-sex couples as valid marriages, some transgender individuals were asked to provide immigration officials with proof of having undergone a sex reassignment surgery to be eligible for marriage benefits. However, in June 2013, the Supreme Court struck down Section 3 of DOMA in United States v. Windsor, holding that the law violated the Fifth Amendment by denying federal benefits and protections to state-sanctioned same-sex marriages.2 This means that bi-national couples living in states where same-sex marriage is legal, or couples who have been legally married abroad, will now likely be recognized as married couples for federal immigration purposes.3 Going forward, the documented sex of a transgender individual will likely be irrelevant with respect to valid marriages and immigration law. In addition, same-sex marriage was re-legalized in California following the Supreme Court’s decision in Hollingsworth v. Perry to dismiss a challenge to a lower court ruling that found California’s state-level ban on same-sex marriage unconstitutional.4

  1. Matter of Lwin, 16 I. & N. Dec. 1 (BIA 1976); Matter of Darwish, 14 I. & N. 307 (BIA 1973). 

  2. United States v. Windsor, 570 U.S.___ (2013). United States v. Windsor, 133 S.Ct. 1521 (2013). 

  3. Immigration and DOMA, Immigration Equality,, Last visited May 28, 2014. 

  4. Hollingsworth v. Perry, 570 U.S.___ (2013).