By Lisa Keen
Same-sex foreign couples, who are not treated the same as straight foreign married couples when it comes to being allowed to enter the U.S., looked like they might have an easier time entering the country for about a day this week – but it didn't happen.
The U.S. Citizens and Immigration Service said they were reviewing their policy because of President Obama's recent decision to stop defending the Defense of Marriage Act. But they decided to stick with business as usual.
"The last few days have been extremely frustrating and disappointing," said Lavi Soloway, an attorney specializing in binational same-sex married couples seeking immigration. "USCIS raised hopes that they had created a desperately needed interim remedy that would protect married gay and lesbian binational couples. But within days, the administration reversed the abeyance policy that had been in place in two USCIS offices, and briefly, nationwide. In the process, they created tremendous confusion."
Christopher Bentley, press secretary for USCIS, said March 30 that the agency received the legal guidance it sought from the DOJ concerning DOMA and green card applications by same-sex married couples. The "USCIS has not implemented any change in policy and intends to continue enforcing the law," Bentley said. In other words, DOMA still applies.
DOMA prohibits any agency of the federal government from recognizing a marriage license granted to a same-sex couple. For binational same-sex married couples seeking a green card to enable the foreign spouse to establish permanent residence in the U.S., the law closes a door open to other married couples. Spouses and other "immediate family members" can obtain green cards without waiting for a visa number to become available.
USCIS sought clarification from DOJ after U.S. Attorney General Eric Holder announced February 23 that DOJ would no longer defend DOMA in court as meeting heightened constitutional scrutiny. DOJ had also indicated it would continue to enforce DOMA until or unless the courts determined the law was unconstitutional. But some attorneys in the immigration field questioned whether the Holder announcement might apply to immigration courts.
USCIS issued a one-sentence statement March 30, saying, ""USCIS has not implemented any change in policy and intends to continue enforcing the law."
Soloway characterized that "explanation" as "unacceptable."
"While DOMA is the law of the land, green card applications cannot be approved by USCIS," said Soloway, "but there is no imperative that they be denied. Adjudications can be put on hold with final decisions on these cases deferred, giving binational couples lawful status and protection from deportation until DOMA is either repealed by Congress or struck down by the Supreme Court."
"This unconstitutional law," said Soloway, "should not be used as an excuse to do nothing while gay and lesbian families are being torn apart."
