Lavi Soloway

U.S. immigration officials confirmed Monday, March 28, that the green card applications of immigrants who are in marriages with same-sex partners who are American citizens will be “held in abeyance” until the Department of Justice provides “final guidance related to distinct legal issues” involved in such cases.

Christopher Bentley, press secretary for the U.S. Citizenship and Immigration Service (USCIS), issued a two-sentence statement saying: “USCIS has not implemented any change in policy and intends to follow the President’s directive to continue enforcing the law.  USCIS has issued guidance to the field asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues.”

In a phone interview Tuesday, Bentley clarified that the statement refers to the Defense of Marriage Act (DOMA), which prohibits any federal agency from recognizing marriage licenses granted to same-sex couples.

Bentley said the statement was issued in conjunction with the publication of an article in TheDailyBeast.com, March 25. That article noted that some binational same-sex married couples were wondering whether the U.S. Attorney General’s announcement February 23—that the administration would no longer defend DOMA as meeting heightened constitutional scrutiny—would improve their chances at obtaining a green card.

It further noted that officials in two USCIS districts (Washington, D.C., and Baltimore) “informed attorneys from the advocacy group American Immigration Lawyers Association that cases in their districts involving married gay and lesbian couples would be put on hold.”

Lavi Soloway, an immigration attorney and specialist in LGBT issues, said in an interview that the USCIS announcement would stop indefinitely the deportation of immigrants who have applied for green cards based on their same-sex marriages to American citizens.

But he said Monday’s announcement does not guarantee that the government will eventually approve the application for a green card.

And USCIS’s Bentley said the agency expects to resume processing the green card applications of same-sex married couples as soon as it receives clarification from Department of Justice attorneys on how to proceed.

A green card entitles a foreign citizen to permanent residence in the United States. While most immigrants who apply for green cards must wait for a visa number to become available in order obtain one, an “immediate family” member, such as a spouse, does not have to wait.

Soloway cautioned that “not all married couples—gay or straight—are eligible to file” the petition and application necessary to obtain a green card.

“All need legal advice,” said Soloway, “but especially gay couples, because they’re filing [for a green card] in the current context –when it can’t be approved under current law. The greatest concern for some of those couples is that filing now would be the wrong move.  They can end up in deportation that can’t be delayed.”

“But with the proper guidance from attorneys,” said Soloway, “many couples whose concern is imminent deportation can persuade courts and government attorneys to adjourn deportation proceedings based on pending, marriage-based applications.”

Soloway’s firm represents a binational lesbian couple in New York who just last week secured a hold on a deportation proceeding. The hold was granted based on the couple’s marriage in Connecticut last year. A U.S. immigration judge in Manhattan ruled March 22 that the deportation proceeding against Monica Alcota should be adjourned until federal courts determine the constitutionality of DOMA. Soloway said he believes this is the first time an immigration judge has put a deportation proceeding on hold to allow a same-sex couple the opportunity to pursue an immigration petition based on their marriage.