The Hold is Over: No Green Cards For Married Gay Foreigners

Last Friday the U.S. Citizenship and Immigration Service (USCIS), which falls under the Dept. of Homeland Security, announced that it would suspend its usual practice of denying green cards to foreign-born spouses in same-sex marriages for an unspecified period of time, following the decision by the Obama administration not to defend the Defense of Marriage Act (DOMA) in court.

Activists had said the agency would wait until pending DOMA court challenges had been ruled on before deciding on deportation in these cases. The Daily Beast called the action "a game changer" and "a lifeline" for binational married gay couples.

On Wednesday USCIS cut that lifeline when it announced that it would continue to enforce DOMA as outlined by U.S. Attorney General Eric Holder in last month's memo.

Metro Weekly reports:

The "hold" on same-sex married bi-national couples' green card applications -- celebrated by immigration and LGBT advocates -- is over, according to the spokesman for the agency that processes those requests. "The guidance we were awaiting ... was received last night, so the hold is over, so we're back to adjudicating cases as we always have," U.S. Citizenship and Immigration Services press secretary Christopher Bentley told Metro Weekly this morning.

The agency will continue to "enforce the law," he says, which means that the Defense of Marriage Act -- which prohibits the government from recognizing same-sex marriages -- prevents those green card applications from being approved.

Related articles

• 'The Hold Is Over': Immigration Discrimination Against Gays is Back on, Says Agency (towleroad.com)
• Same- Sex Greencards - Hopes may be Dashed - Now is the Time to Fight!! (lezgetreal.com)
• Immigration: Foreign spouses of American gays, lesbians cannot apply for green cards (miamiherald.typepad.com)
• DOJ's DOMA Decision Offers Hope For Same-Sex Bi-National Couples (pinkbananaworld.com)

Obama's DOMA Decision Helps Binational Married Gay Couples

One of the areas where DOMA has been felt the hardest has to do with binational gay and lesbian couples. Even though they may legally marry in five states and the District of Columbia, those marriages are not recognized as valid by the federal government due to the Defense of Marriage Act (DOMA). A foreign born gay spouse cannot receive a green card the way a straight foreign born spouse in the same situation can. Consequently, they face deportation with no legal recourse.

This injustice may be about to change in the wake of the Obama administration's announcement last month that it would no longer defend DOMA in court. Metro Weekly reports:

Following up on reports from this weekend, Metro Weekly just received confirmation from Christopher Bentley, the spokesman for the U.S. Citizenship and Immigration Services, that cases of foreign partners who are married to a same-sex partner and would otherwise be eligible for a green card are on hold in light of questions about the continued validity of the Defense of Marriage Act.

Bentley writes, "USCIS has issued guidance to the field asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues."

He notes, however, "USCIS has not implemented any change in policy and intends to follow the President's directive to continue enforcing the law."

The legal distinction means that although DOMA is still being enforced, the USCIS is using its discretion to hold off on denying green card applications where applicable.

As Lavi Soloway, a leading attorney pressing these cases told Metro Weekly earlier, "The best thing for the Department of Justice to be doing now is to be holding off on decisions. We're arriving at a new day, and that means a lot of new opportunities."

Saying, "It's not exactly rocket science," Soloway noted when speaking about these issues previously that the administration "has twice dealt in a very special way with groups of individuals facing deportation."

He explained, "They put a moratorium on the widows of U.S. citizens in 2009, and, in 2010, the administration announced it would defer action on the deportation of individuals who are likely eligible under the DREAM Act. So, the administration has shown that it does use its executive branch muscle when it comes to discretion about who to deport."

Now, it appears, the USCIS has reached a similar decision about its response to the administration's Feb. 23 announcement that it no longer will defend Section 3 of DOMA in court. Were it not for Section 3 of DOMA, Soloway argues, a U.S. citizen who is half of a same-sex bi-national married couple would be able to sponsor his or her non-citizen spouse for the purpose of obtaining a green card.

Immigration Equality also has supported this argument, announcing in the week following the DOJ's Feb. 23 decision that it too was considering legal action regarding binational couples in the wake of the changed interpretation.

[UPDATE @ 4 PM: Soloway emails:

Confirmation that this policy is now in place nationally is cause for celebration. In many ways this is vindication of a two-decade long struggle by thousands of binational couples, advocates and attorneys. But the fight is not over yet. Many couples, after consulting with experienced immigration attorneys, may decide that this is the proper time to file a green card case. However, DOMA is still the final obstacle for attaining a green card; unless it is repealed or struck down, filing any case with immigration is not without risk.

Related articles

• U.S. Agency Confirms: Binational Same-Sex Immigration Cases on Hold Over DOMA Questions (towleroad.com)
• Shift In Policy Regarding Binational LGBT Couples (lezgetreal.com)
• Until court rules, Immigration holds 'in abeyance' cases involving binational gay, lesbian couples (miamiherald.typepad.com)
• Some Gay Immigration Cases Put on Hold (bilerico.com)
• Gay Immigrants' Same-Sex Marriage Lifeline (thedailybeast.com)