Visa Lawyer Blog
We has learned that the USCIS hold on adjudication of cases involving same-sex partners has been lifted. An announcement by immigration officials in Washington on Monday that they were delaying decisions on some immigration cases involving gay couples led to a surge of expectations among gay advocates that the Obama administration had taken a small but significant step toward recognizing same-sex marriage.
But now, immigration officials moved swiftly to clarify their position and dampen those hopes, saying they have not made any policy changes that would provide an opening to gay couples. The episode added to the legal confusion that has followed the administration’s determination last month that the law that bars the federal government from recognizing gay marriages, the Defense of Marriage Act, is unconstitutional.
According to Immigration Equality Memo released today, until DOMA is repealed or until there is a final court decision, it is the obligation of the Executive branch to comply with and enforce the law. Recent statements by DHS re‐iterate this enforcement message; therefore, if a USC or LPR files an I‐130 immigrant visa petition on behalf of his or her partner, it will be denied.
As discussed above, the theoretical benefits of marriage seem to outweigh the theoretical risks for many, if not most, bi‐national couples. The same, however, cannot be said for the filing of an I‐130 in several situations. For example:
• A USC/LPR Should Generally Not File an I‐130 on Behalf of an Undocumented Spouse: An
undocumented foreign national whose spouse files an I‐130 on his or her behalf may be placed in removal proceedings. This moves the individual out from “under the radar” and puts them at
greater risk of physical removal from the U.S.
• A USC/LPR Should Generally Not File an I‐130 on Behalf of a Spouse Who Has a Valid Tourist or Student Visa and Intends to Continue Using It: The filing of an I‐130 on behalf of a spouse is generally seen as an indication of the spouse’s intent to remain in the U.S. permanently. Doing so will likely make it very difficult for the foreign spouse to enter the U.S. in the future as a tourist or a student.
• A USC Should Generally Not File a Fiancé/ee Petition on Behalf of an Exiled Partner: Since a
fiancé/ee visa filed today will almost certainly be denied and may be evidence of immigrant
intent, such a filing will likely lead to the denial of any future tourist or student visa application.
On the other hand, if the spouse of a USC or LPR is in removal proceedings and has nothing to lose by having his or her partner file an I‐130, there is generally no reason not to file it. A pending I‐130, or a pending appeal of a denied I‐130, could form the basis for a request for prosecutorial discretion or administrative closure of the removal case.
The President’s position and Attorney General’s announcement are so new that the broader implications are still being reviewed and analyzed. This is the first time that the White House and DOJ have announced that Section 3 of DOMA is unconstitutional, and we hope that this announcement will soon pave the way to immigration recognition for bi‐national couples.
Read the Memo here Download file