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Green card applications for married gays on hold awaiting DOJ guidance
News update posted March 29, 2011
by Lisa Keen, Keen News Service
2011-03-30

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U.S. immigration officials confirmed Monday, March 28, that the green card applications of immigrants who are in marriages with same-sex partners who are American citizens will be "held in abeyance" until the Department of Justice provides "final guidance related to distinct legal issues" involved in such cases.

Christopher Bentley, press secretary for the U.S. Citizenship and Immigration Service ( USCIS ) , issued a two-sentence statement saying: "USCIS has not implemented any change in policy and intends to follow the President's directive to continue enforcing the law. USCIS has issued guidance to the field asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues."

In a phone interview Tuesday, Bentley clarified that the statement refers to the Defense of Marriage Act ( DOMA ) , which prohibits any federal agency from recognizing marriage licenses granted to same-sex couples.

Bentley said the statement was issued in conjunction with the publication of an article in TheDailyBeast.com, March 25. That article noted that some binational same-sex married couples were wondering whether the U.S. Attorney General's announcement February 23 —that the administration would no longer defend DOMA as meeting heightened constitutional scrutiny— would improve their chances at obtaining a green card.

It further noted that officials in two USCIS districts ( Washington, D.C., and Baltimore ) "informed attorneys from the advocacy group American Immigration Lawyers Association that cases in their districts involving married gay and lesbian couples would be put on hold."

Lavi Soloway, an immigration attorney and specialist in LGBT issues, said in an interview that the USCIS announcement would stop indefinitely the deportation of immigrants who have applied for green cards based on their same-sex marriages to American citizens.

But he said Monday's announcement does not guarantee that the government will eventually approve the application for a green card.

And USCIS's Bentley said the agency expects to resume processing the green card applications of same-sex married couples as soon as it receives clarification from Department of Justice attorneys on how to proceed.

A green card entitles a foreign citizen to permanent residence in the United States. While most immigrants who apply for green cards must wait for a visa number to become available in order obtain one, an "immediate family" member, such as a spouse, does not have to wait.

Soloway cautioned that "not all married couples —gay or straight— are eligible to file" the petition and application necessary to obtain a green card.

"All need legal advice," said Soloway, "but especially gay couples, because they're filing [ for a green card ] in the current context —when it can't be approved under current law. The greatest concern for some of those couples is that filing now would be the wrong move. They can end up in deportation that can't be delayed."

"But with the proper guidance from attorneys," said Soloway, "many couples whose concern is imminent deportation can persuade courts and government attorneys to adjourn deportation proceedings based on pending, marriage-based applications."

Soloway's firm represents a binational lesbian couple in New York who just last week secured a hold on a deportation proceeding. The hold was granted based on the couple's marriage in Connecticut last year. A U.S. immigration judge in Manhattan ruled March 22 that the deportation proceeding against Monica Alcota should be adjourned until federal courts determine the constitutionality of DOMA. Soloway said he believes this is the first time an immigration judge has put a deportation proceeding on hold to allow a same-sex couple the opportunity to pursue an immigration petition based on their marriage.

© 2011 Keen News Service. All rights reserved.

From the Immigration Equality news release, originally posted on www.windycitytimes. com on March 28, 2011

WASHINGTON, March 28, 2011 /PRNewswire-USNewswire/ -- Immigration Equality, the national experts on immigration rights for lesbian, gay, bisexual and transgender people, hailed an announcement today from U.S. Citizenship and Immigration Services ( USCIS ) that the agency will allow Americans with spouses from abroad to apply for green cards while courts weigh constitutional challenges to the federal Defense of Marriage Act.

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

"Today's statement is the first domino to fall for LGBT Americans with foreign national spouses," said Rachel B. Tiven, the group's executive director. "As Immigration Equality noted in our letters to both the Department of Homeland Security and the Department of Justice, we believe that no spousal application should be denied until DOMA's constitutionality is settled. Immigration Equality has been fighting for LGBT immigrant families since 1994. In that time we have counseled more than 10,000 families — and for them, today's news is a sign that relief is finally on the way."

Last week, Immigration Equality's legal team filed a green card application on behalf of Edwin Blesch, an American citizen, and Tim Smulian, his South African husband. Despite being legally married in South Africa — a marriage recognized in Edwin's home state of New York — the couple has struggled to remain together. Edwin struggles with failing health and increasingly depends on Tim as his primary caretaker. The couple joined Immigration Equality in hailing today's announcement.

"Every day, we live with the very real possibility that, despite following every law and every policy of the United States, Tim will be forced to leave the country, and I will be left without my caretaker and the love of my life," Blesch said in a statement. "Today's news gives us great relief, and great hope that we may soon be able to put that worry behind us. For the first time, we can begin to plan the rest of our lives together without fear that we will be torn apart."

Couples who believe they may be impacted by today's decision are encouraged to contact Immigration Equality's legal team for free, confidential advice at www.immigrationequality.org/contactus.php.

Immigration Equality is a national organization that works to end discrimination in U.S. immigration law, to reduce the negative impact of that law on the lives of lesbian, gay, bisexual, transgender and HIV-positive people, and to help obtain asylum for those persecuted in their home country based on their sexual orientation, transgender identity or HIV-status. Through education, outreach, advocacy, and the maintenance of a nationwide network of resources, we provide information and support to advocates, attorneys, politicians and those who are threatened by persecution or the discriminatory impact of the law.


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