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[IMPORTANT WEDNESDAY, MARCH 29, UPDATE: “Immigration Official: ‘The Hold Is Over’“]
[IMPORTANT TUESDAY, MARCH 29, UPDATE: “DHS Official: Bi-National Immigration Case Abeyances Could End Within A Week.“]
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.”
[FOR A MORE DETAILED DESCRIPTION OF THESE ISSUES, READ: “Policy Change, At Least Locally, Puts Bi-National Couples’ Immigration Cases On Hold.”]
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.
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.
Keep following Metro Weekly for continued coverage of this significant development.]
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