Recent executive orders from the White House are reshaping how the U.S. Department of State processes visa and passport applications. These changes directly affect applicants whose gender identity differs from their biological sex at birth, particularly impacting transgender individuals, athletes, and nonimmigrant visa seekers traveling for sports or professional activities.
Overview of Executive Orders
Two presidential directives are at the core of these changes:
- Executive Order 14168 (January 20, 2025) – “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”
This order requires all federal agencies, including the Department of State, to use “sex at birth” rather than self-identified gender for official documentation. - Executive Order 14201 (February 5, 2025) – “Keeping Men Out of Women’s Sports”
This mandates that athletes applying for U.S. visas must verify that their participation in women’s sports aligns with their biological sex.
Key Changes in Consular Processing
1. Sex Designation in Visa and Passport Applications
Applicants must now reflect their biological sex at birth on forms such as the DS-160 (nonimmigrant visa) and DS-11/DS-82 (passport applications).
Even if the passport lists a different gender marker, the visa must reflect the applicant’s birth sex. Passports already issued under previous self-identified gender rules remain valid until expiration.
2. Revisions to the Foreign Affairs Manual (FAM)
On February 5, 2025, 18 sections of the FAM were updated to replace the term “gender” with “sex.” Specifically, 9 FAM 403.2-5(B)(1) now states that all visas must reflect the applicant’s sex at birth—regardless of the passport’s designation.
3. Consular Adjudication Procedures
Consular officers are instructed to:
- Compare the sex listed on a foreign passport to the applicant’s stated biological sex.
- Interview applicants and examine documents like birth certificates when discrepancies arise.
- Issue 221(g) refusals where clarification or additional documents are required.
- Apply INA 212(a)(6)(C)(i) for material misrepresentation if the applicant’s stated gender conceals facts critical to visa eligibility.
Impacts on Athletes Seeking U.S. Visas
For visa classifications where travel relates to sports participation (e.g., O, P, or B-1/B-2 for amateur competition), officers must:
- Verify that the applicant’s biological sex at birth matches eligibility requirements for competition.
- Refuse visas under INA 214(b) if the applicant cannot demonstrate eligibility aligned with EO 14201.
- Consider fraud-based inadmissibility under INA 212(a)(6)(C)(i) if intentional misrepresentation of sex is found.
What Visa Applicants Should Know
- All applicants should prepare to provide documentation confirming sex at birth, especially if their passport or prior U.S. records list a gender identity not aligned with these new policies.
- Any discrepancy in documents may lead to delays or refusals.
- Valid existing passports or visas with gender markers inconsistent with these policies will remain valid but may trigger scrutiny at ports of entry.
Legal Considerations
These changes may raise constitutional and human rights questions, particularly for applicants whose identity documentation—such as passports, birth certificates, or legal name/gender changes—conflicts with these federal interpretations. Legal guidance is essential for navigating these sensitive cases.
Ahluwalia Law Offices, P.C. continues to monitor the evolving guidance from the U.S. Department of State and other federal agencies. Our attorneys are available to advise foreign nationals, corporate visa sponsors, and athletes on how to respond to these new requirements effectively and lawfully.
Contact our office if you need support preparing your application or responding to a visa refusal based on these policy changes.
