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Back to Section One | Back to Arts & Entertainment
posted Friday, April 1, 2011 - Volume 39 Issue 13
Mixed messages from feds on bi-national marriages
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Mixed messages from feds on bi-national marriages

by Mike Andrew - SGN Staff Writer

LGBT rights advocates briefly celebrated reports that two U.S. Citizenship and Immigration Services (USCIS) district offices were reversing long-standing policy and accepting alien relative petitions and green card applications filed by married same-sex couples.

The reports were published by Newsweek's Daily Beast blog on March 18. By March 28, new information from federal authorities indicated that the celebrations were premature.

U.S. immigration policy has been to deny applications for residence in this country when they are filed by foreign citizens married to U.S. citizens of the same sex.

Under DOMA, the federal government is prevented from recognizing same-sex marriages, even if they are perfectly valid in jurisdictions where they are performed.

Same-sex partners are unrelated in the eyes of federal authorities, and therefore not entitled to the same consideration as opposite-sex spouses when it comes to living in the U.S.

DOMA is being challenged by several federal court cases, however, and U.S. Attorney General Eric Holder said on February 23 that President Obama has concluded it is unconstitutional.

According to the Daily Beast, USCIS offices in D.C. and Baltimore had decided to accept applications from same-sex couples and hold them 'in abeyance' until federal courts made a decision on the constitutionality of DOMA.

'In abeyance' means that foreign citizens married to U.S. citizens of the same sex could enter the U.S. legally and reside here, at least until all legal questions about DOMA were settled by federal courts.

If U.S. policy had, in fact, changed, it would have affected an estimated 36,000 bi-national couples.

As SGN goes to press, federal authorities have issued decidedly mixed messages on whether policy has changed.

On March 28, Metro Weekly reported confirmation from Christopher Bentley, a spokesperson for USCIS, that green card applications from foreign partners of U.S. citizens are on hold because of questions about the constitutionality of DOMA.

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

However, 'USCIS has not implemented any change in policy and intends to follow the president's directive to continue enforcing the law,' Bentley warned.

The next day, Bentley told Associated Press that 'it's business as usual' at USCIS.

That means, Associated Press added, that 'after a brief reprieve, immigration authorities are once again denying applications for immigration benefits for same-sex couples.'

According to The Advocate, Bentley said that some applications were being held up because of specific legal questions, but USCIS policy had definitely not changed.

'The cases were held while we were waiting for legal guidance,' Bentley said. 'There's no need to hold the cases any longer.'

He added that legal guidance from the Department of Homeland Security indicated that district offices do not have the authority to hold all such cases in abeyance.

Bentley also declined to comment on specific cases or to release any documents related to the cases being held, saying it was privileged communication.

Noting the 'policy of abeyance that was already in place in at least two USCIS district offices,' immigration attorney Lavi Solway said the new information from USCIS was 'regrettable.'

'While DOMA remains the law of the land, the policy of holding applications by married Gay and Lesbian bi-national couples in abeyance is the ideal interim remedy to provide necessary protection to those bi-national couples and is consistent with enforcing DOMA,' he told The Advocate in a statement.

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