03/28/11-by Bridgette P. LaVictoire
For those who have been waiting for the news that the White House was going to change the rules regarding green cards for same-sex partners of lesbian and gay Americans, the news came out this weekend that the US Citizenship and Immigration services was issuing rules regarding foreign born partners lesbian and gay Americans and who are eligible for green cards would be put on hold with regards to deportation cases must be nice to hear. Of course, LGR’s Melanie Nathan normally covers this story, but she is currently in South Africa and did not have time to cover this story. Unfortunately, this means that LGR is a bit behind in reporting it.

Metro Weekly reports that confirmation of this policy shift came from USCIS spokesman Christopher Bentley:

Bently 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.”

Metro Weekly also did a series of updates regarding the policy shift:

[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 However, DOMA is still the final obstacle for attaining a green card; unless it is repealed or struck down, filing any case with immigration is not without risk.

There certainly will be further developments on this front, so check back for more.]

[UPDATE @ 5:33 PM: Immigration Equality’s executive director Rachel Tiven said in a statement:

Today’s statement is the first domino to fall for LGBT Americans with foreign national spouses. 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.

According to the news release, lawyers associated with Immigration Equality 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,” the release notes.

Blesch said in the release:

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. 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.

By and large, the legality of the Defense of Marriage Act has been called into question, and that has to be resolved forthwith. The resolution of it is making its way through the courts, and several Senators including New York’s Kirsten Gillibrand are working hard to try and put an end to DOMA once and for all.

Stopthedeportations issued the following with regards to this policy shift:

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.