please help desperate

[Villanelle 4,122]

Your friend has many problems. Because this is kind of confusing Im going to call your friend the gender neutral name of Rory.

As others have stated legally Rory is still a male. Rory would need to marry a woman to adjust status. Rory would also have to file a waiver because Rory overstayed.

Rory is going to have an incredibly difficult time because Rory looks like a woman. Rorys marriage may or may not be legal as well. (due to the fact that while legally Rory is listed as a male, physically Rory is not) But lets say the state allows Rory to marry a woman- Rory then has to present the marriage to USCIS.

USCIS is then going to determine if the marriage is legitimate. They are going to have the same concerns (is Rory a woman or a man? is the marriage legitimate? USCIS does not allow for same sex marriages- this could end up in appeals court) They will also question if Rory married this woman solely for the purposes of obtaining a greencard.

The fact that Rory had gender reassignment surgery but has not legally changed his identity to female should technically allow him to marry as male and subsequently obtain marriage benefits as a male, however it will call into question the legitimacy of Rorys relationship with the wife because it would imply the wife is a lesbian (?) I mean- sorry to be so blunt but the wife is married to someone with a #######. So if Rorys wife doesnt have a history of being a lesbian or bisexual, its going to seem fraudulent.

If Rory pursues this, by legally marrying a woman as a man- its going to end up in appeals court. With a competent attorney and legitimate proof, Rory may win. It would be very costly though, and take a very very long time and from your post- Rory ill not have legitimate proof, nor good intentions. (as Rory is not in love with a woman- Rory just wants a greencard)

Rory needs to research the proper legal way to change his identity from male to female. Once he does- he will become a she. Rory can then marry the man of her dreams when the time is right.

[I AM NOT THAT GUY 5,715]

http://www.ilw.com/immigrationdaily/news/2012,0413-uscistransgender.pdf

[I AM NOT THAT GUY 5,715]

http://www.ilw.com/immigrationdaily/news/2012,0413-uscistransgender.pdf

It appears that as far as the USCIS is concerned, a doctor's certification is good enough.

[pleo 2]

At this point if she leaves she will have a 10 year bar for the overstay. What was she arrested for ? That could make a huge difference in her ever being able to get a green card. She will have to legally ( on all official documents) be a woman to marry you for immigration. That will not happen in time to leave on her schedule let alone have a green card petition even filed. The easiest way assuming she wasn't doing something terrible like selling drugs would be to leave. When you are divorced and her papers align with her reassigned sex you can marry her and file. You will need a waiver to overcome the bar.

from what i am reading, the waiver is almost impossible to get

[Villanelle 4,122]

It appears that as far as the USCIS is concerned, a doctor's certification is good enough.

well further in the memo it talks about how to adjudicate transgender people-

(J) Transgender issues and marriage.

Benefits based upon marriage may be approved on the basis of a marriage between a

transgender individual and an individual of the other gender if the Petitioner/Applicant

establishes 1) the transgender individual has legally changed his or her gender and

subsequently married an individual of the other gender, 2) the marriage is recognized as a heterosexual marriage under the law where the marriage took place (Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005)), and 3) the law where the marriage took place does not bar a

marriage between a transgender individual and an individual of the other gender.

While a timely registered heterosexual marriage certificate from the appropriate civil authority is prima facie evidence of the validity of a marriage, when an officer determines, based on the record or through interview or other means, that a party to a petition has changed gender, the officer must ascertain that the marriage is a valid heterosexual marriage under the laws of the jurisdiction in which it was contracted.

So the transgendered individual must legally change their gender and have a legally recognized marriage.

The validity of the marriage must be established by the preponderance of the evidence. As with most administrative immigration proceedings, the petitioner bears the “preponderance of the evidence” burden. Thus, even if there is some doubt, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof. See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). As such, officers should be satisfied that this burden is met if the marriage is recognized in the jurisdiction in which it was contracted as a heterosexual marriage. USCIS will presume the validity of the marriage involving a transgender individual in the absence of jurisdictional law and/or precedent that would place the validity of such marriage in doubt. Only in jurisdictions where a specific law or precedent either prohibits or sets specific requirements for a legal change of gender for purposes of that jurisdiction’s marriage laws is the individual required to demonstrate that he or she has met the specific requirements needed to establish the legal change of gender and the validity of the marriage. the individual may also show, in an appropriate case, that the law barring a legal change of gender for purposes of marriage has changed and that the marriage is valid under current law.

The friend in this case, would have to find out what would be needed in their state to have their marriage be legally recognized. Because USCIS will legally recognize their gender change based on the Drs statement- the hitch will be if their state will.

If the state recognizes the Drs statement, then the friend will have a valid marriage as a woman to a man and USCIS will accept the marriage and the Drs statement and allow it if the couple can prove the relationship is legitimate.

If the state doesnt accept the Drs statement then their marriage wont be recognized and theres no basis for benefits.

[I AM NOT THAT GUY 5,715]

If the state doesnt accept the Drs statement then their marriage wont be recognized and theres no basis for benefits.

50 states and a few territories to shop from, many of which have no residency requirements. And, just to set the record straight, it is not just recognizing a marriage by a state or country that is necessary - if that was the case, then same-sex marriage would be accepted by the DHS, in violation of DOMA. The marriage must be recognized as a heterosexual marriage, between two people of opposite gender.

Even more interesting, and a strategy that could be considered, the actual gender reassignment surgery does not have to have taken place. For instance, if a person could have their original birth certificate amended, that would be sufficient to receive a new passport with the new gender. The DHS is accepting that new standard as well. And, it appears, the DHS cannot look beyond the actual Doctor's Certification, other that to verify that the doctor is a practicing and licensed physician or osteopath, of any medical field, anywhere in the world, not necessarily the person that performed the surgery.

[pleo 2]

50 states and a few territories to shop from, many of which have no residency requirements. And, just to set the record straight, it is not just recognizing a marriage by a state or country that is necessary - if that was the case, then same-sex marriage would be accepted by the DHS, in violation of DOMA. The marriage must be recognized as a heterosexual marriage, between two people of opposite gender.

Even more interesting, and a strategy that could be considered, the actual gender reassignment surgery does not have to have taken place. For instance, if a person could have their original birth certificate amended, that would be sufficient to receive a new passport with the new gender. The DHS is accepting that new standard as well. And, it appears, the DHS cannot look beyond the actual Doctor's Certification, other that to verify that the doctor is a practicing and licensed physician or osteopath, of any medical field, anywhere in the world, not necessarily the person that performed the surgery.

my concern is not changing her gender marker legally. She has met that burden of proof. My concern is her marrying someone else. I cannot marry her until August and im sure that is not enough time for her to be home in October. So does she risk being barred permanently or with the new waiver reform coming, would i have a chance to get the 10 year ban lifted? i feel like i am fighting a losing battle as i fear her need to see her family outweighs her feelings for me or her desire to come back to the U.S. you know i never gave immigration much thought until going thru this. We all make mistakes in our lives and i fear this mistake will change her whole future simply because she has no other alternatives

[I AM NOT THAT GUY 5,715]

my concern is not changing her gender marker legally. She has met that burden of proof. My concern is her marrying someone else. I cannot marry her until August and im sure that is not enough time for her to be home in October. So does she risk being barred permanently or with the new waiver reform coming, would i have a chance to get the 10 year ban lifted? i feel like i am fighting a losing battle as i fear her need to see her family outweighs her feelings for me or her desire to come back to the U.S. you know i never gave immigration much thought until going thru this. We all make mistakes in our lives and i fear this mistake will change her whole future simply because she has no other alternatives

If she overstayed, and leaves the US, she will not be able to return to the US. Her arrest history in the US, especially if it has anything to do with prostitution or drugs, is another bar from entry back into the US.

Other than that, she has to make the decision who she is going to marry, if anyone, for whatever reason, not you. It sounds like the problem may be with you trying to hold onto her, even though it seems she is not interested in anything other than immediate satisfaction. You may just have to let her go and move on.

Edited March 3, 2013 by The Patriot

[Ippsy Pippsy 31]

my concern is not changing her gender marker legally. She has met that burden of proof. My concern is her marrying someone else. I cannot marry her until August and im sure that is not enough time for her to be home in October. So does she risk being barred permanently or with the new waiver reform coming, would i have a chance to get the 10 year ban lifted? i feel like i am fighting a losing battle as i fear her need to see her family outweighs her feelings for me or her desire to come back to the U.S. you know i never gave immigration much thought until going thru this. We all make mistakes in our lives and i fear this mistake will change her whole future simply because she has no other alternatives

I'm not sure that even if she married this other person now, that she would be able to leave by October (and come back!). You never know how long it takes things to process these days.

To give better advice, we'd need to know what her crime was. Is moral turpitude involved?

[aaron2020 11,651]

I'm not sure that even if she married this other person now, that she would be able to leave by October (and come back!). You never know how long it takes things to process these days.

To give better advice, we'd need to know what her crime was. Is moral turpitude involved?

Leaving is not a problem.

There is almost no chances of coming back under the best of circumstances.

Assume, USCIS accepts the marriage as valid. Assume again, the crime is not a barrier for an immigration benefit.

There is little chances that marriage, getting the proper documents including police certificates, and adjusting would result in a green card in 7 months under current processing time. AP is worthless because of the overstay. A green card is the only way back into the US.

That's the best case scenario. The chances of that happening is close to zero.

Edited March 5, 2013 by aaron2020

[I AM NOT THAT GUY 5,715]

And, I believe she has to apply for the Visa and be denied, before she can apply for a waiver.

Edited March 5, 2013 by The Patriot

[Ippsy Pippsy 31]

Sorry, I should have been more clear. Leaving is easy. Coming back...

[pleo 2]

I'm sure the stories are here about the same situation.

We have been dating about a year. Unfortunately i was separated and had no date for divorce. i asked her to marry me this past November and she said yes.

She has been married once and divorced back in October. never filed any papers with previous marriage. BTW sh is out of status j1 visa i=94 d/s. Has not had ban triggered. Now she decides she must be home to Thailand this coming October for a family memorial service. She tells me she cannot wait for my divorce to be filed and has to marry someone now to get an interview in time. That was a blow. The other blow was when she said her decision was final and that we could pretend nothing has changed or i can walk away and she will call me when she gets GC. she had told me previously that she was going back in october whether she had interview or not. now she says she wont if the interview doesnt come on time or if she needs a second one. I am so afraid she is ruining her life and will be caught as a fraud. i know i should head for the hills and i dont know why i dont. Should i report her or would that just be spiteful. i dont know who the guy is so i cant even confront him. This is so selfish on her part. Love is a very strange thing because my head says run but my heart says she loves me but she just needs to do this.

Maybe someone could eloquently help me tell her its over. my reaction has already been anger and sadness. i need to be able to calmly tell her goodbye and then have the strength to stay away and not contact her ever again

[AmyWrites 593]

This girl wants a relationship with anyone who is willing to help her get a GC or citizenship. You're being used. Move on.

[SamanthaL 45]

I think it's obvious that she's using you... Don't let someone take advantage of you. Kick her to the curb and move on.