FAQ: Answers to Common Questions from Transgender Immigrants

Can I apply for asylum in the U.S. as a transgender immigrant?

Yes, if you are at a substantial risk of being persecuted in your home country by government officials—or being persecuted by others with the government’s approval—for your sexual orientation, gender identity or expression, or because you have HIV, you might be eligible to remain in the U.S. through political asylum. Talk to a trustworthy attorney about filing an asylum application with the United States Citizen and Immigration Services (USCIS). (Beware of notario fraud! Avoid taking advice about your immigration from a notary public or immigration consultant. A directory of legal service providers in your area is available at www.weownthedream.org/legalhelp/.) In the absence of extraordinary or changed circumstances, you must file your application within a year of entering the country. Ask an attorney about the specifics of your case, especially if you have a criminal background.

If I have been the victim of a crime in the U.S., can I apply for a special visa?

A special visa called a U Visa may be granted to immigrants who have been the victim of certain crimes (including sexual assault and domestic violence), suffered injury because of the crime and then helped the police to resolve the crime.

Consult an attorney who is knowledgeable about immigration law to find out if you are eligible for a U visa.

How do I change the gender marker on my U.S. passport—and other identity documents?

If you want to change the gender on your U.S. passport, you need a letter from a licensed physician that certifies that you have had “appropriate clinical treatment.” Treatment no longer needs to include gender-affirming surgery, because in 2010 the State Department dropped its policy of requiring proof of surgery—better reflecting the individualized nature of treatment for gender transition.

Immigrants in the U.S. follow the same rules as non-immigrants for changing their gender markers on domestic U.S. documents, such as driver’s licenses and birth certificates. Policies still vary widely from agency to agency—although it is increasingly recognized in the U.S. that surgery is not part of gender transition for some people and that a person’s own doctor is best situated to attest to appropriate clinical treatment.

Departments of Motor Vehicles in about half the states have removed the surgical requirement completely for people who want to apply to change their gender marker on their driver’s licenses. In 2013, the Social Security Administration eliminated its surgery requirement. California, the District of Columbia, Oregon, Vermont and Washington have also eliminated it for changing gender status on birth certificates. In addition, several states offer access to driver’s licenses for undocumented immigrants.

(For more information, see the “Identity Documents” fact sheet, part of this Transgender Toolkit and available at lambdalegal.org/publications/toolkits and, in Spanish, at lambdalegal.org/es/publicaciones.)

How do I change the gender on my non-U.S. passport?

Many countries still do not allow you to change the gender on your passport. In Canada and certain areas of Mexico, you may change the gender on your passport by getting a new birth certificate but still must submit written proof of surgery to do so. Many Latin American countries offer consular identification cards for their citizens in the U.S., but it is not clear whether you can get a consular identification card or a passport with your actual gender identity.

As of 2014, Argentina and Denmark are the only Latin American and European countries that allow you to change the gender marker on your passport simply by going to a consulate and filling out a form.

What should I do if I am questioned or stopped by police or immigration or they come to my home?

If police or immigration officials come to your home or work, they must have a warrant to enter. (A warrant is a piece of paper signed by a judge giving permission to enter your home or workplace.) Ask the officials to slip the warrant underneath the door. If you open the door and allow them to come into your home or workplace, this may be considered giving them “consent” to enter. If they enter without a warrant, request their names and badge numbers and state that you did not “consent” to a search.

If police or immigration officials stop you on the street and do not have a warrant, they may not arrest you without evidence that you are a non-citizen. You do not have to consent to a search of yourself or your belongings. Do not lie about your citizenship status or provide fake documents. Do not carry with you any documents that are from your country of origin or are false.

You have the right to remain silent and to speak to a lawyer. Avoid questions about where you were born or how you got to this country, and don’t sign any documents before speaking with a lawyer, even if officials are pressuring you to do so.

If you are arrested by police, do not resist, even if you believe the arrest is unfair. Say that you wish to remain silent and ask for a lawyer immediately. If you can’t pay for a lawyer, you have the right to a free one. Don’t say anything, sign anything or make any decisions without a lawyer. You have the right to make a local phone call and to be assigned an interpreter if you need one. Police must release you after 48 hours (not counting weekends and holidays) if they don’t formally charge you with a crime in court. If you are accused of a crime, consult with an immigration attorney to make sure that the crime will not affect your immigration status.

If you are taken into immigration custody, you have the right to a lawyer, but the government does not have to provide one for you. Ask for a list of free or low-cost legal services. Avoid signing anything, such as a voluntary departure or stipulated removal, without talking to a lawyer. If you sign, you may be giving up your opportunity to try to stay in the U.S. You also have the right to have an officer contact your consulate.

Can I marry a U.S. citizen or resident and apply for a green card if I am not a U.S. citizen or resident and one of us is transgender?

The answer to whether you can get married depends on where you live and where the marriage takes place. The answer to whether you can apply for a green card depends on the specifics of your case.

If you are not married yet and not yet in the U.S., the partner who is an American citizen can apply for a K-1 fiancé(e) visa to allow you to enter the U.S. with the specific goal of getting married and applying for a green card; this is at the federal level. It doesn’t matter what gender either of you are; whether you are transgender or not; or whether you are a same-sex or opposite-sex couple.

If you are already in the U.S., however, your marriage will only be recognized under certain conditions:

Finally, assuming you can get legally married, whether you can apply for a green card depends on the specifics of your case—for example, how you entered the country and whether you married a U.S. citizen or resident. Consult a trustworthy attorney on how best to go about applying for these benefits once married.

For more information about marriage rights for transgender people, see Lambda Legal’s “Transgender People and Marriage Laws” fact sheet (lambdalegal.org/publications/trt_transgender_marriage-laws).

As a young immigrant who is transgender, do I have special rights to avoid deportation?

You may be eligible for Deferred Action for Childhood Arrivals (DACA) if you came to the U.S. before you were 16 and can meet other requirements. Visit this Immigration Equality webpage to find out if you’re eligible.

What are my rights if I’m in immigration detention?

According to the U.S. government’s Immigration and Customs Enforcement (ICE), you have the following rights in federal immigration detention— although the truth is that these rules often remain unenforced:

  1. Gender-Appropriate Clothing: You have the right to have access to clothing according to your gender identity, but underwear is generally assigned at the discretion of each particular detention center.
  2. Transition-Related Care: You have the right to have access to hormone treatment if you were taking it prior to detention—and to proper medical evaluation if you were not.
  3. HIV Medications: You have the right to have access to HIV meds while in detention.
  4. Strip-Search Options: When a strip-search is required, transgender men and transgender women have the right to choose whether the searcher is a man or woman.
  5. The right not to be placed in isolation and not to be sexually assaulted or harassed: (See “Sexual Assault in Detention: New U.S. Rules Fall Short.”) If you want to file an official complaint with the U.S. Office for Civil Rights and Civil Liberties, click here. If you are a family member, attorney or advocate, keep in mind that you will need to include written permission from the person being detained to file a complaint on his or her behalf.

If you want to file an official complaint with the U.S. Office for Civil Rights and Civil Liberties, go to: www.dhs.gov/file-civil-rights-complaint. If you are a family member, attorney or advocate, keep in mind that you will need to include written permission from the person being detained to file a complaint on his or her behalf.

If you’re denied clothing that is in line with your gender, transition-related care, HIV meds, a strip-search by staff of your same gender, or if you’re put in isolation, or sexually harassed or assaulted while in detention, call Lambda Legal’s Help Desk toll-free at 866-542-8336 or go to www.lambdalegal.org/help. También hablamos español.

Health Care as a Transgender Immigrant: What should I do if I have a medical emergency?

Go to a hospital or emergency room; they are required by federal law to provide emergency health care to everybody. Keep in mind that the care provided might be very basic and that you may have to pay for it. Depending where you live, you might be able to go to an LGBT-specific clinic.

Health Care as a Transgender Immigrant: What should I do if I need health insurance?

There is medical consensus that transition-related care can be medically necessary, but even if you have access to public or private insurance, you should know that most plans still have exclusions.

If you have documents that authorize you to live or work in the U.S., then you may have access to health insurance through the Affordable Care Act (ACA). Low-income individuals may be eligible for Medicaid, a publicly funded federal-state health program. “Qualifying” immigrants, such as legal permanent residents and asylees who have held this status for five years or longer, may be able to receive free or low-cost health coverage through Medicaid. Some states, such as California, provide full benefits under Medicaid, or Medi-Cal, for immigrants “permanently residing under color of law,” which includes “lawfully present” immigrants. (“Permanently residing under color of law” means that immigration authorities are aware of a person’s presence but have no plans to deport/remove him or her from the country. It is interpreted differently, depending on the benefit program and jurisdiction.)

If you are undocumented, your options are more limited. Undocumented people and Deferred Action for Childhood Arrivals (DACA) recipients may not use their own money to purchase health care under the ACA. Depending on the state, you might qualify for Emergency Medicaid if you are low-income, which will cover health care services for emergency care. In some states, such as California, you can get health care through local county health programs. You can also receive care from Federally Qualified Health Clinics and other community clinics.

Health Care as a Transgender Immigrant: What should I do for health insurance if I’m a student?

If you are a transgender student attending a U.S. college or university, you may have the option of buying the school’s health insurance (some cover transition-related health care; others do not). Immigration status is generally not a factor. High school-age immigrants often qualify for Emergency Medicaid or state-sponsored health insurance.

For more information: Contact Lambda Legal at 212- 809-8585, 120 Wall Street, 19th Floor, New York, NY 10005-3904. If you feel you have experienced discrimination, call our Legal Help Desk toll-free at 866-542-8336 or go to www.lambdalegal.org/help.