As was reported Friday by Newsweek/ The Daily Beast, two United States Citizenship and Immigration Services (USCIS) District Offices have confirmed that alien relative petitions and green card applications filed by married same-sex couples will not be denied. Instead, final decisions on these applications will be held in abeyance, i.e. put on hold. This historic first seems to be directly linked to the Obama administration's change of position on DOMA announced on February 23. The DOMA Project welcomes the new and exciting potential this presents for married gay and lesbian couples to obtain legal status and prevent deportations of the foreign partner. However, in this new and rapidly changing legal environment, we urge attorneys and binational couples to proceed with an abundance of caution.
The significance of the "abeyance" policy is two-fold: first, it means that petitions and applications that normally would have been denied because of DOMA, will now remain in "pending" status, and second, this status will give protection and benefits to the applicant for an indefinite period. The "abeyance" policy, it is presumed, will put these cases on hold while the ultimate fate of DOMA is determined by a decision of the Supreme Court or through repeal by Congress.
This tremendous news comes after months of advocacy by national immigration law and policy groups, LGBT organizations and advocates including The DOMA Project. While The DOMA Project has focused primarily on stopping deportations, we have also engaged in wide-ranging advocacy and provided legal representation in related cases where couples are fighting separation or exile.
As readers of this site know, since July 2010 we have filed more than a dozen alien relative petitions on behalf of gay or lesbian American citizens for their spouses as part of our Stop The Deportations campaign. Our campaign has been successful in slowing and stopping several deportations through a combination of legal strategies and aggressive advocacy efforts, including reaching out to members of Congress and working closely with executive branch agencies.
In the coming days and weeks, the attorneys at Masliah & Soloway, who launched The DOMA Project last year, will be filing green card cases on carefully chosen behalf of several same-sex binational couples who are not currently facing deportation proceedings. We have been working for months with hundreds of binational couples in an effort to determine which couples are in the best position to file green card petitions and applications. For some couples, we believe that time is now.
This latest evolution in our strategy to aggressively fight for binational couples is the culmination of an 18-year long commitment by our law firm⎯led by two gay immigrants⎯to fight for an end to discrimination against lesbian and gay binational couples.
USCIS District Offices to Accept Green Card Applications
from Gay Couples and Hold Them in Abeyance
What does this mean for an estimated 36,000 binational couples?
Some married gay and lesbian binational couples will now have an opportunity to take a major leap toward full equality under our nation's immigration laws. However, it is important to remember that DOMA is still the law of the land and despite this tremendous news, filing green card applications in this uncertain environment could result in a foreign spouse being placed in removal (deportation) proceedings. For that reason, no couple should make a move toward marrying or filing on the basis of the marriage without first consulting an immigration attorney with specific expertise in both LGBT immigration issues and the developing landscape of DOMA.
Generally, the risk all couples face if they chose to file is that they may ultimately be placed into removal proceedings. Because the announced policy is one that was developed at the discretion of the District Directors of the offices involved, it is not yet known whether this policy will be extended nationally nor whether it may be changed in the future. Again, it bears repetition that couples and their attorneys must proceed with extreme caution.
This development will have the greatest impact on two groups of couples:
1. Married gay and lesbian couples where the foreign spouse lawfully entered the United States but is now an "overstay" and without lawful status. For these couples, the filing of an alien relative petition and application for adjustment of status to permanent resident should automatically give temporary lawful status to the foreign spouse for the duration of the period that the case is pending. If these applications are in fact held in abeyance until DOMA's final demise, this could mean that couples who have wrestled for years with the nightmare of deportation, separation and instability caused by a lack of lawful status may now be on the verge of a new reality. The foreign spouse will not only receive (temporary) lawful status, but also employment authorization and potentially other benefits, as long as they have a pending green card application. Unfortunately, despite the temptation that this will present to many couples, for many it will be better to wait until there is greater certainty about this policy and the future of DOMA.
2. Married gay and lesbian couples who are already facing removal (deportation) proceedings. It is now likely that we will be able to stop virtually all deportation proceedings involving married gay and lesbian couples who have filed green card petitions/applications and who are, but for DOMA, otherwise eligible to receive a green card based on their marriage. Even couples in removal (deportation) proceedings must proceed cautiously when considering whether to marry and file a green card petition/application based on that marriage. However, unlike those who are not in proceedings, the risk of deportation is very real, and the likelihood is that this new development will provide protection to almost every couple facing deportation, if they are currently in proceedings.
There is light at the end of the tunnel for binational couples. The individual stories of binational couples suffering separation, exile or the threat of deportation continue to be our most important weapon in the fight against DOMA. There is still a long road ahead before we achieve full equality and we cannot be complacent.
Please contact us at stopthedeportations [at] gmail.com if you want to get involved in our work or if you have any questions about the new "abeyance" policy.
[Update: March 29, 2011: It now seems certain that the temporary national abeyance policy announced March 28, 2011 will end shortly. Government attorneys working on final guidance suggest that USCIS will retain case-by-case discretion but will not be permitted to put on hold indefinitely all green card applications filed by married gay and lesbian couples. The DOMA Project will continue to advocate for a uniform abeyance policy, for the interim period while DOMA continues to be enforced.]