Joe Sudbay points to a post from immigration lawyer Lavi Soloway, explaining the news that cases involving binational gay couples have been put in abeyance while DOMA’s status is being resolved, and hopefully, eliminated:
Some married gay and lesbian binational couples will now have an opportunity to take a major leap toward full equality under our nation’s immigration laws. However, it is important to remember that DOMA is still the law of the land and despite this tremendous news, filing green card applications in this uncertain environment could result in a foreign spouse being placed in removal (deportation) proceedings. For that reason, no couple should make a move toward marrying or filing on the basis of the marriage without first consulting an immigration attorney with specific expertise in both LGBT immigration issues and the developing landscape of DOMA.
This development will have the greatest impact on two groups of couples:
1. Married gay and lesbian couples where the foreign spouse lawfully entered the United States but is now an “overstay” and without lawful status. For these couples, the filing of an alien relative petition and application for adjustment of status to permanent resident should automatically give temporary lawful status to the foreign spouse for the duration of the period that the case is pending. If these applications are in fact held in abeyance until DOMA’s final demise, this could mean that couples who have wrestled for years with the nightmare of deportation, separation and instability caused by a lack of lawful status may now be on the verge of a new reality. The foreign spouse will not only receive (temporary) lawful status, but also employment authorization and potentially other benefits, as long as they have a pending green card application. Unfortunately, despite the temptation that this will present to many couples, for many it will be better to wait until there is greater certainty about this policy and the future of DOMA.
2. Married gay and lesbian couples who are already facing removal (deportation) proceedings. It is now likely that we will be able to stop virtually all deportation proceedings involving married gay and lesbian couples who have filed green card petitions/applications and who are, but for DOMA, otherwise eligible to receive a green card based on their marriage. Even couples in removal (deportation) proceedings must proceed cautiously when considering whether to marry and file a green card petition/application based on that marriage. However, unlike those who are not in proceedings, the risk of deportation is very real, and the likelihood is that this new development will provide protection to almost every couple facing deportation, if they are currently in proceedings.
There is light at the end of the tunnel for binational couples. The individual stories of binational couples suffering separation, exile or the threat of deportation continue to be our most important weapon in the fight against DOMA. There is still a long road ahead before we achieve full equality and we cannot be complacent.
Just one of the many, many issues that even many of our straight allies don’t realize gay couples confront under DOMA, and another reason it’s so crucial that DOMA be relegated to a stain in our history books.
Read Soloway’s entire piece.