DENIED: Obama Admin Immigration Decision Puts Couples in Limbo 

Meanwhile, gay binational couples nationwide have found increasing support from congressional Democratic leaders, including House minority leader Nancy Pelosi and Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee.

Following immigration officials’ recent denial of a Vermont couple’s green card petition, the state's congressional delegation wrote a strongly-worded letter to Secretary of Homeland Security Janet Napolitano asking the agency to reconsider its decision in the case of Frances Herbert and Takako Ueda, a Japanese national.

“[I]t is very distressing that the present decision to deny abeyance of the married-based immigration petitions in these limited situations will force otherwise law-abiding immigrations to fall out of lawful status,” Leahy wrote in a February 9 letter also signed by Vermont senator Bernard Sanders, an independent, and Rep. Peter Welch, a Democrat.

“We believe that DHS can and should exercise its prosecutorial discretion to hold this limited class of applications in abeyance,” Leahy wrote.

Herbert and Ueda, who married in Vermont last year, filed a marriage-based green card petition, known as an I-130, but received a rejection notice from U.S. Citizenship and Immigration Services in December. Ueda has juggled student visas for 11 years as the couple survives on what Herbert calls “an extremely modest income” because her wife is not eligible to work here legally.

“It’s a relief to know they’re not pursuing deportation,” Herbert said. “But it leaves Takako here with no legal status. She has no legal document to work, no ability to apply for a driver’s license ... There’s still this huge gap of uncertainty. It’s shameful in this country that just because we are the same gender, our government can deny us the most basic, fundamental rights.”

Other recent cases have seen more positive outcomes. Immigration officials have granted two married binational couples facing severe health situations what’s known as deferred action after their green card petitions had been rejected.

Significant press attention, as well as support from congressional members, were almost certainly contributing factors for both reprieves. Bradford Wells and Anthony Makk, who live in San Francisco, were granted a two-year hold on their case after Leader Pelosi advocated on the couple's behalf (Makk is an Australian citizen). In Long Island, N.Y., Tim Smulian, a South African national married to Edwin Blesch, was given a one-year deferral with the help of New York Sens. Kirsten Gillibrand and Charles Schumer, as well as New York Rep. Tim Bishop.

Last year, DHS Secretary Napolitano announced her agency would review all pending deportation cases in an effort to identify those that are high-priority (convicted felons or threats to national security, for instance) and those that are not. Cases considered to be low priority include those who have an “immediate family member” who is a U.S. citizen, and government attorneys can interpret that term to include a same-sex spouse or partner, officials have said, though no written guidance has been issued on the matter.

Most gay binational couples seeking lawful status are not in active deportation proceedings, however. And the case-by-case review has vexed advocates who argue that the best way to protect gay binational families is to hold all green card applications in abeyance until DOMA is struck down or repealed by Congress.

“Nobody has offered a legal basis as to the decision that’s been made" by the administration, said Crystal L. Williams, executive director of the American Immigration Lawyers Association. “All they’ve said is that they’re not going to [hold the green card petitions in abeyance]. So it has to be a political decision. How can they say that DOMA is legally indefensible, yet proceed to deny married couples the legal right to be together in the United States?”