Originally published on Advocate.com March 30 2011 9:30 AM ET
Immigration officials say they have lifted the moratorium on green card cases for binational married couples, and they will continue to enforce the current law which does not permit same-sex married couples the same immigration rights as heterosexual married couples. This news comes just two days after U.S. Citizenship and Immigration Services announced that action on such cases would be halted pending further legal guidance.
Wednesday morning USCIS press secretary Christopher S. Bentley told The Advocate that the agency had received legal guidance to lift the hold it had issued Monday. The guidance was issued in the form of written communications from the Office of the General Counsel at Department of Homeland Security (USCIS is a component of DHS).
Bentley declined to release any of the written documents at this time, saying it was privileged communication. He emphasized that the official policy itself within DHS had never changed.
“The cases were held while we were waiting for legal guidance," Bentley said. “There’s no need to hold the cases any longer.”
Legal advocates, who have increasingly argued that green card applications and deportation
proceedings of married gay couples should be put on hold pending
resolution of the Defense of Marriage Act's constitutionality, had celebrated recent statements from immigration officials as a
promising step toward bringing parity to the system for LGBT individuals.
According to a Friday Newsweek/The Daily Beast piece, representatives for district immigration offices in Baltimore and Washington, D.C., had recently informed members of a local American Immigration Lawyers Association chapter that all cases regarding married gay couples would be put on hold.
Bentley said that as a result of the legal guidance from DHS, district offices do not have the authority to put a hold on all such cases. Immigration cases will continue to be handled on a case-by-case basis. “It’s business as usual,” Bentley said.
"This regrettable decision reverses a policy of abeyance that was already in place in at least two USCIS District Offices. While DOMA remains the law of the land, the policy of holding applications by married gay and lesbian binational couples in abeyance is the ideal interim remedy to provide necessary protection to those binational couples and is consistent with enforcing DOMA," immigration attorney Lavi Soloway told The Advocate in a statement. "While these applications cannot be approved today, none of them should be denied. We must continue to advocate strenuously for an abeyance policy and for a moratorium on the deportation of spouses of gay and lesbian Americans. It is clear that the administration has the discretion to halt deportations and put processing of "green card" cases on hold temporarily while work continues to repeal DOMA. This administration should work immediately to develop remedies to ensure that binational couples are not torn apart because of a law that the President and the Attorney General have determined is unconstitutional."