Binational Same-Sex Couples can begin Immigration petitions NOW!

Binational Same-Sex Couples can begin Immigration petitions, following last week’s Supreme Court ruling striking down the Defense of Marriage Act (“DOMA”).

DHS Secretary Janet Nepolitano has issued the following statement:  “effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”  SOURCE

The first report of a Binational visa petition success story has already surfaced.  See First Success Story.  If you are a  Binational Same-Sex Couple can you rely on this information and begin the process?  The answer to that is clearly yes.  The FAQ states so and also states what happens if you live in a state that does not recognize same-sex marriage, but were married legally in a state that does.

Should you expect the local USCIS office to roll out the red carpet for you in this process?  The answer to that is clearly NO.  First of all, you of course must still be admissible under the Immigration and Nationality Act.  Secondly, local USCIS officers are the ones who make decisions about immigration benefits.  My experience with them is that as a group they can be quite resistant to change.  Filing an immigration petition and getting into the system is one thing, but having an immigration officer make a decision on the file is another matter entirely.  My belief is that Same-Sex Couples will have a heavier burden than traditional couples when seeking these immigration benefits.  USCIS officers are members of a powerful union.  That union may try to openly resist or defy the Administration, much as several agents, including ICE Union President Chris Crane, sued the Administration last year over its Prosecutorial Discretion policy.  Even if  USCIS officers do not resist so overtly, what is to prevent a privately-biased officer from ‘deferring’ making a decision at a green card interview?  Such an officer may simply decide to continue the case over background checks, etc…Once that happens, you are in the uncomfortable position of having a continued case and you would face an indeterminate time frame on receiving a decision, barring federal litigation.  It could happen.

For any case-specific inquiries, please contact this office directly.