sciencenerd

If you want to try and immigrate through spousal sponsorship, it might be possible - just be prepared for a long, hard road. If you do, I would just recommend getting married in Texas or Kansas - they both have court precedents basically saying that a person's birth sex cannot be changed for purposes of marriage. They have ruled that even after surgical and legal change of sex (including new birth certificate, passport, name, etc.), trans people are still considered to be their birth sex for the purpose of marriage (and only this purpose, oddly). If you want to try, you could potentially be open about being trans, but argue you got married in a state that views your marriage as a heterosexual marriage. You would technically be eligible, but I don't have a lot of faith in USCIS ruling that way. Of course, it all depends on the IO you get - it's a risk you'd have to take. You should definitely use a lawyer, though, no matter what. I have tried multiple times to attach the USCIS policy on trans folks and marriage, but it's not working for some reason. It is focused on people assigned the same sex at birth where one partner has transitioned, but you could arguably do the opposite of the requirements on there (not have surgery and get married in a state that would not recognize your change of sex - Texas or Kansas or a few others) and be okay. Like I said, you are technically eligible, but the burden is unfortunately on you to prove that to USCIS. You have the added burden of most lawyers with expertise in trans legal issues would not take your case since you would be trying to have your transition NOT recognized and that's not the best thing for trans people in general (not saying that this should be your concern at all, but it may make finding a qualified lawyer more difficult).
I know that being trans makes this way more complicated, but it might be good to realize that in this situation you are not being discriminated against for being trans but rather for being in a same-sex partnership (and potentially marriage if you decide to go that route). It doesn't make things any easier, but I think it's important to realize that the reason you will have difficulty immigrating is because of homophobic laws and you can find solidarity with the 35,000 other binational couples in the same situation. I will say that same-sex binational couples are usually advised NOT to get married because it makes crossing the border as a visitor infinitely more difficult.
I also just want to say that I'm so sorry that you are in this position. It is the worst kind of cruelty to keep people apart from those they love because of bigotry and prejudice. I sincerely hope that you and your partner find a way to be together legally. I was in a similar situation for many years and personally know the heartbreak it causes. I'm luckily on the other side of that now and I hope that you will be, too, whether it's through deciding to fight for spousal sponsorship, working with your employer to immigrate that way, or having your partner immigrate to Canada.

I hate to be pessimistic about this, but you are too far into your transition to pull this off without being open. You have a long time on hormones and legally changed your name. You will be required to list your female name (as an "other names used") in the application even if you were to legally change it back and you will almost certainly be asked about that. While you may technically be male using USCIS definitions, you will have a hard time getting them to approve your marriage as valid. I know of one case slightly different than yours (both partners were trans - FTM - and tried to get married after one changed all documentation but before the other) and their case was not approved because they basically said "you can't have it both ways". In other words, you know you're female/they know you're female and that your marriage as an opposite-sex one is built on a technicality. Per USCIS, you will be considered female for purposes of marriage when you get married in a place that recognizes you as female AND you have surgery. So, yes, you do qualify as a male. However, they know as do you that you will not qualify for long. I also know someone who was successful postponing his surgical transition until naturalization, but had been on hormones for quite some time (and as you likely know, transitioning to male can sometimes be more difficult to hide since testosterone's effects are so strong). I won't say that you absolutely will not get approved, but I will say I think it's pretty unlikely. It is a rare circumstance and I gave you the two cases I'm aware of where someone attempted to immigrate as their pre-transition sex. Immigration Equality is a good resource, although out of principle they won't represent you (they only represent people who are applying congruently with their gender identity, which is not an option for you), but they can refer you to lawyers. Jessica Boell is a good lawyer for this, but she's in Portland. She will likely repeat what I have said, but she may have other ideas for success. This is one of those situations where it's obvious how ridiculous it is that same-sex marriages are not recognized - you would have been fine had you done this pre-transition and you definitely would not be fine post-surgery, but you and your partner are the same people/couple. I really wish you the best of luck - there are no easy solutions here and, even if you could technically pull it off, you may just be trading one type of hell (being away from your partner) for another (presenting as a sex you are not). Note that if you do want to try this, I did not mean that you have to live as male, just that you will need to present that way to immigration. Like I said, though, I personally think you are far enough into transition that this is not an option for you. If there is any way for your partner to immigrate to Canada, it would definitely be the best way for you two to be together.

This is a difficult situation because you will need to present as male and keep your documentation as male until this is over. If you are seen legally as female by the state you live in, you will have a same-sex marriage and your hopes to live with your partner in the states will be over. If you are willing and able to present as a straight couple to go through this process, you should be successful. If you present as a same-sex couple, but say that legally you are still male so you want to be considered an opposite-sex couple for this purpose, you will likely run into major problems. This is obviously a huge sacrifice to make to be with your partner legally in the states, but only you can decide if it's a sacrifice you are able to make. If deferring your medical transition is not possible, there will be no way for you to immigrate to the states, unfortunately. Good luck. www.immigrationequality.org is a good resource

This is not true. As of 1/4/2010, HIV testing is no longer done as part of the medical and HIV is not a basis for denial of a visa or AOS application. Since this is relatively new, it is understanding that it confuses people who were tested for HIV as part of the process only a year ago. I don't wish to hijack this thread, but I do want accurate information to be available to people with HIV.
Here is the relevant information:
Effective January 4, 2010, visa applicants required to receive medical examinations will not be tested for HIV, and HIV-positive visa applicants will not be found ineligible for visas under Section 212(a)(1)(A)(i) of the INA and will not need waivers from the Department of Homeland Security (DHS) prior to being issued visas, if otherwise qualified.
Source: http://travel.state.gov/pdf/HIV_Q&As.pdf
Another good reference: http://immigrationequality.org/template.php?pageid=5

This is not true. As of 1/4/2010, HIV testing is no longer done as part of the medical and HIV is not a basis for denial of a visa or AOS application. Since this is relatively new, it is understanding that it confuses people who were tested for HIV as part of the process only a year ago. I don't wish to hijack this thread, but I do want accurate information to be available to people with HIV.
Here is the relevant information:
Effective January 4, 2010, visa applicants required to receive medical examinations will not be tested for HIV, and HIV-positive visa applicants will not be found ineligible for visas under Section 212(a)(1)(A)(i) of the INA and will not need waivers from the Department of Homeland Security (DHS) prior to being issued visas, if otherwise qualified.
Source: http://travel.state.gov/pdf/HIV_Q&As.pdf
Another good reference: http://immigrationequality.org/template.php?pageid=5

If I can be blunt, you don't know what you're doing, and you have a very limited time in which to do this and do it correctly if you want your wife to not banned from the US.
Think very carefully about the ramifications of this. You would have to move to the UK. For the next 10 years, you could not visit your family with your wife. You might have a greater fight in 10 years to get her visa, if you and your wife wished to live in the US.
If you file for the CR1, your wife can stay until the 15th. She can even visit you other times while her case is pending (though the "90 days in / 90 days out" guideline would be best to follow). She'll have time to close up her life in the UK -- something she cannot do under the option (as she cannot leave the US while a concurrent I-130/I-485 filing is pending).
It really seems like it's in your best interests to go the CR1 route rather than adjust off the VWP.

You said you don't know the difference between a B1 and a B2, but like Harpa Timsa I would assume that your wife entered without a visa, purely based on the fact that you stated she got only 90 days to stay. You never confirmed that (unless I totally overlooked it), but it would be important to actually open her passport and look for a visa.
If there's a B1 or B2 visa in there, you guys can take a deep breath, as any potential overstay will not be made an issue of at the Adjustment of Status (AOS) from non-immigrant to immigrant.
If your wife does not have a visa, and also in light of your quicky marriage, you are looking at 2 options:
1) File an I-130 petition (petition for an alien relative) this week. Have your wife return to Her Majesty's Kingdom before December 16th. Once the I-130 is approved, your wife can apply for a CR-1 visa. Once issued, she enters the US as a Lawful Permanent Resident (LPR) and receives her Green Card a couple of weeks later in the mail. No AOS, no headaches, no fear of dire consequences.
2) Find somebody competent in AOS issues and get your I-130, I-485 and I-765 out ASAP via USPS Express Mail.
Don't make a mistake, don't forget anything, don't enclose a check that doesn't have the exact amount and you should be fine, as long as the petition is being accepted in time.
If that doesn't happen and your wife overstays for a few days, heck . . . even stays until after Christmas and New Year's . . . no big deal. The overstay would prevent her from entering the US again without a visa, but when it comes to the CR-1, it won't have an impact as long as no 180-day overstay would trigger a 3-year bar. Needless to say, while out of status, your wife should keep a low profile, not being arrested for doing' fireworks on New Year's Eve and not trying to visit Niagara Falls.
Good luck.

You can't sponsor a brother-in-law nor can you sponsor a brother while you are a permanent resident. My understanding is that your only option is to wait until you're a citizen (eligible 3 years after immigrating assuming you are still married) and then sponsor him. There is something like a 10 year wait for siblings, so your child will probably not need a babysitter anymore by the time your brother could come over. I don't know if parents are faster - someone will know, though. Either way, it will be several years from now. Good luck.

Hi Renata1984,
Sorry for you loss of your husband... My thoughts and prayers are with you and your family at this itme.
In answer to your question:
Unfortunately, one of the requirements of US citizenship, under the 3-year rule is to still be married and living with the same US citizen spouse. And since your husband is deceased, you cannot apply under this rule anymore. However, you can still apply for citizenship under the 5-year general rule or anytime after that....
As for US citizenship (or any other citizenship), you seriously have to think about this. This is not a decision to be taken lightly, especially in the recent events of your life. Having citizenship can have both positive and negative consequences in your life. So think it over....
The questions right now you should ask are: Now that my husband has passed away, do I see myself happier living in and belonging in the USA? Or do I see myself happier and belonging in my former country? Do I see myself having allegiance to the USA? Or do I see myself having allegiance to another country?
As for finances...There is no income requirement to apply for US Citizenship...
And now that your husband is deceased (assuming they were your sponsor), then he is no longer obligated to fulfill the requirements of the I-864 (affidavit of support) that he signed...
However, as a US citizen, you will be required to file an income tax return, regardless of your income, and regardless of where you live in the world
As well, you might be subjected to US taxes, in terms of your husband's estate (someone else can explain this further...)
There are people that live in the USA as permanent residents, which is ok to do.....Just renew your green card every 10 years...
There is no deadline and/or obligation to be a US citizen...As it is completely optional...
So think it over...And good luck with whatever you decide...
Hope this helps. Good luck.
Ant

Doesn't matter if he is gay or Muslim or both.
The man is speaking his mind; I would hope with intellect and with turth.
If he is to be persecuted for this I would hope we as a nation would provide him safety.

we finally had our interview today and it could not have gone better. we were approved on the spot and the immigration officer was as friendly as possible given the situation. we got asked:
- when/where we met
- when/where we got married
- where honeymoon
- if my wife left the country since last entry (in 2006 - overstay). no other questions about the overstay
that's about it. we had lots of documents (checking and savings accounts, retirement accounts, life insurance, health insurance, car insurance, car loan, cell phone bills, dental insurance, affidavit from landlord, joint credit cards, tons of photos, wedding album, etc.). He looked through everything and added it to our file. He told us we were approved and gave us the info about filing for removal of conditions.
can't believe we're finally approved! thanks to everyone here for your help on here - it kept me sane during this time. i'm going to try to disappear for the next year or more so i stop obsessing over immigration stuff, but i'm sure i'll be back when the time comes. Congrats, everyone, and good luck to the folks still waiting!

If there's reasonable reason to believe they're illegal. For example if they're eating a taco or wearing a sombrero or something.

I sincerely hope that you find a solution to this predicament. I do think you need to be more receptive to some of the challenges you will face - I know many, many same-sex couples just as determined as you that are now living overseas because there was absolutely no option for them to stay together here. I know many more who don't even have that option. It's heartbreaking and everyone starts off thinking that they can find some way to get through it - it's hard to accept such incredible injustice especially when it keeps you apart from who you love. There are couples together for years and years who have been through every possibility - it is not accurate or fair to assume that they just didn't have the will. Go look through the Immigration Equality website - they have information about all of the options that are available to folks in your situation. I'm truly sorry that our nation refuses you the rights they give other citizens, but this is the current situation and you need to deal with it in a way that isn't just assuming that things will work out just because they should. Good luck and, for real, try to listen to some of the people here who actually have some experience and knowledge in this area. If you don't like what they have to say, go to Immigration Equality - they set up a free consult with a local attorney for friends of mine to help them navigate this.