Foreign nationals who are married to U.S. citizens of the same sex may apply for spousal green cards and other benefits, immigration authorities announced Monday, but it remains to be seen whether the government will issue them.
In the past, foreign same-sex spouses who sought the immigration benefits granted to heterosexual married couples were automatically rejected by the U.S. Bureau of Citizenship and Immigration Services because of a law that barred the federal recognition of gay marriage.
But the agency has stopped that practice, at least temporarily, in light of last month’s decision by the Obama administration to no longer defend the constitutionality of the 1996 Defense of Marriage Act in court. Any such applications will now be put on hold until the agency receives guidance from the Department of Homeland Security’s general counsel, spokesman Christopher S. Bentley said.
“USCIS has not implemented any change in policy and intends to follow the president’s directive to continue enforcing the law,” Bentley said in a statement. “USCIS has issued guidance to the field, asking that related cases be held in abeyance, while awaiting final guidance related to distinct legal issues.”
Republicans in Congress vowed to defend the statute against several legal challenges filed by same-sex couples. Moreover, the Obama administration has said unequivocally that the law will remain in place unless it is repealed or invalidated by the courts. The Supreme Court is likely to resolve the issue.
The USCIS decision does not apply to deportations. However, the administration’s reservations about the Defense of Marriage Act led an immigration judge in New York to stop deportation hearings for a married Argentine lesbian found to be in the country illegally, according to media reports.
Gay rights groups hailed Monday’s announcement, which was first reported by the Daily Beast, as a significant victory, because the heterosexual spouses of U.S. citizens are afforded certain benefits under immigration law. For example, they may apply for permanent residency status or green cards, which are key steps toward citizenship.
“Today’s statement is the first domino to fall for LGBT [lesbian, gay, bisexual and transgender] Americans with foreign national spouses,” Rachel B. Tiven, executive director of the advocacy group Immigration Equality, said in a statement.