Once the Defense of Marriage Act was repealed by the United States Supreme Court, we were retained by many same-sex couples to obtain a green card based on marriage. One couple in particular faced an unusually difficult fact pattern. The couple had been in a relationship for over 10 years. One of the partners was a United States citizen, born and raised in New York City. The other was a woman from Guatemala, who had entered the United States without inspection, crossing the border from Mexico, many years earlier. Prior to coming to our office, the U.S. citizen partner had undergone major surgery to have his sex reassigned from male to female. Despite the change, the couple had remained together and when they came to consult with us, explained their situation and asked for our advice. Since they had been living together for over ten years and remained in a committed relationship, we felt comfortable advising them to legally marry so that the U.S. citizen could then petition for her partner along with a Provisional Waiver for the unlawful entry and presence.

They were married shortly after in New York City at City Hall and celebrated their official union with a short honeymoon. Following their marriage, we filed the I-130 (Petition for Alien relative) with the accompanying documentation. Due to the number of years they had been in a relationship we were able to establish the veracity of their relationship through documentary evidence, including a business partnership they had formed, photos throughout the years (including the transformation of the petitioning U.S. citizen spouse from male to female), evidence of co-mingling of assets including bank accounts, insurance policies and credit card statements.

Because the case was so well documented, the I-130 was quickly approved without the traditional interview by an immigration officer at the local USCIS field office. The couple was grateful that they did not have to explain their relationship to a stranger in the setting of the office of an immigration officer at the Department of Homeland Security.

Once the I-130 petition was approved, we immediately filed the Provisional Wavier, documenting the hardship to the U.S. citizen petitioner through psychological evaluations that had been conducted throughout the course of the sex change operation. We were also able to explain, in detailed affidavits by both, the hardship the U.S. citizen would experience if her long-term significant other would be removed from the United States.

Because the waiver was so well documented, the Department of Homeland Security approved the Provisional Waiver, allowing the beneficiary the opportunity to travel to her home country of Guatemala in order to be interviewed at the United States Consulate in the capital city of Guatemala City.

The couple traveled to Guatemala, with the approved I-130 and approved Provisional Waiver and were interviewed at the U.S. Consulate. Immediately following the interview, they were advised that the Application for Lawful Permanent Residency was approved and the couple were free to travel back to the United States, with the beneficiary entering the country as a lawful permanent resident.

Thanks to a change in the law for undocumented aliens, as well as a change in the law regarding same-sex marriages, this couple is now free to enjoy their life in the United States free from fear of being present in the United States without immigration status.