USCIS Move Dashes Immigration Hopes of Same-Sex Couples

If you've read the news lately, you may have seen headlines about an announcement by U.S. Citizenship and Immigration Services (USCIS) that seemed to create hope for binational same-sex couples who wish to immigrate one spouse to the United States based on a marriage that took place within a state or foreign country that recognizes same-sex marriages. The USCIS announcement said that these immigration cases would be put on hold, or held in abeyance -- presumably meaning that petitions would not be denied nor people deported (removed) -- until questions about the continued validity of the so-called "Defense of Marriage Act" or DOMA (which defines marriage as being between a man and a woman) were resolved. That course of action hardly provided a clear path to a green card, but it was hoped that it would at least give foreign-born, same-sex partners a legal basis to stay in the United States or resist deportation (removal), even if temporarily.

However, the hold has already been lifted. USCIS announced on March 30, 2011, through press secretary Christopher S. Bentley, that, "The guidance we were awaiting ... was received last night, so the hold is over," and "we're back to adjudicating cases as we always have." Bentley went on to say that USCIS would continue to "enforce the law" -- in other words, refuse to recognize same-sex marriages for purposes of approving green card applications.

Is this the last word on the subject? Not necessarily. A significant shift appears to be taking place within other sectors of the U.S. government. The Justice Department announced earlier this year that it views DOMA as discriminatory and unconstitutional, and that it would no longer defend actions against DOMA in court. Some members of Congress have also declared plans to repeal DOMA. Meanwhile, various cases challenging DOMA are winding their way through the U.S. court system, and it's likely that the Supreme Court will rule on DOMA's constitutionality within the next few years.

In the meantime, however, there's no apparent cause to rush out to file an application for a green card based on a same-sex marriage. For a personalized analysis of your situation, or for further analysis on the government's policy regarding DOMA, consult an immigration attorney (to do that, you can turn to Nolo's trusted Lawyer Directory) or get in touch with an LGBT advocacy organization such as Immigration Equality.