CASES OF INTEREST click here to go back to the Cases of Interest       IMMIGRATION: VISA ISSUES/ IMMEDIATE RELATIVE   Issue: Child of the widow of US citizen under INA § 201 (b)(2)(A)(i)   Issue: Marriage/ transsexual partner/ INA 201(b)(2)(A)(i)       Issue: Child of the widow of US citizen under INA § 201 (b)(2)(A)(i)? In Re: Theadore M. MINKOVA, beneficiary, as child of the widow of Milko Nikodov Mankov Q:Can a petitioner classify the child of a widow of a US citizen as an immediate relative under INA 201 (b)(2)(A)(i)? A: No, the section only allows immediate relative status if the spouse files a petition within two years after the date of the citizen's death and only until the date the spouse remarries. Further, the regulations do not provide for the filing of an I 360 on behalf of the child of a widow or widower.     Issue: Immediate Relative petition/ transsexual spouse/ permanent residence benefits under INA 201(b)(2)(A)(i) In re Jose Mauricio LOVO-Lara, Beneficiary of a visa petition filed by Gia Teresa LOVO-Ciccone, Petitioner, 23 I&N Dec. 746 (BIA 2005) Interim Decision #3512 Q. Is a marriage between a postoperative transsexual and a person of the opposite sex a basis for benefits under INA 201(b)(2)(A)(i)? A. Yes, where the State in which the marriage occurred recognizes the change in sex as the basis for a valid heterosexual marriage. Petitioner, a US citizen, born male, had surgery that changed her sex designation. North Carolina recognized the petitioner to be a female under the law and deemed her marriage to the beneficiary to be a valid opposite-sex marriage. The definition of marriage under immigration law is a question of Federal law found in the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) ("DOMA"). It requires one partner to be a man and the other partner a woman, but does not .address the issue of how to define the sex of a postoperative transsexual or such designation's effect on a subsequent marriage of that individual. DOMA does not preclude recognition of this marriage for purposes of Federal law. Additionally, the law of the State where the marriage was celebrated determines the validity of a marriage. Therefore, petitioner's visa petition is approved.