More FAQs about abeyance

By Victoria Neilson on 03/29/2011 @ 05:56 PM

Tags: In the News

Our legal team is fielding 20 times as many calls and emails as usual, and we are updating and expanding these FAQ's very frequently. Our counsel is always free to the community thanks to the thousands of people who donate to the organization. Please keep in mind that the surge in demand means we cannot answer every email and phone call immediately.

Does the DHS announcement mean that all green card applications will be held in abeyance until there is a final decision in DOMA?

We don’t know. DHS has said that currently applications are being held in abeyance. They have the authority to do this as a matter of discretion, but, as a matter of discretion, they could begin to deny them again. Thus anyone who files a marriage-based case is at risk that it will be denied at some future point and not held in abeyance indefinitely. The consequences of a potentially denied application are different depending on your immigration status.

So, should I file for my spouse now or not?

You should speak to a qualified attorney who is well versed in LGBT immigration issues before doing anything. Some foreign nationals, such as those who are in the U.S. on long-term work visas (H1bs and Ls) are allowed to have “dual intent,” that is to pursue a permanent immigration status while simultaneously being in the U.S. on a temporary visa. There is relatively little risk for couples in this situation to file. Although if the foreign spouse loses his job and needs to change his status to tourist or student at some future date, filing an I-130 could lead to a denial of the tourist or student visa because of immigrant intent.

If a foreign spouse is in removal proceedings, he or she has nothing to lose at this point by filing an I-130.

The couples who really need to weigh the pros and cons of filing in consultation with a qualified immigration attorney are those who are in the U.S. lawfully with a visa that does not allow for “immigrant intent” that is student visas or tourist visas, and those who are in the U.S. without legal status.

If a foreign national is in the U.S. as a student, marries an American, and files for a green card, that will show immigrant intent. Filing the I-130 would not lead to the student visa being cancelled, but it could lead to a denial of entry into the U.S. if the foreign spouse travels, or it could lead to a denial of an application to extend or change the visa.

For individuals who entered the U.S. legally but overstayed their visas, the question of what to do is most difficult. As of today applications are being held in abeyance, so being in the U.S. with an application pending may be somewhat safer than not. However, there is no guarantee that USCIS will continue to hold applications in abeyance, and filing an I-130 will move the undocumented spouse from off the radar to onto the radar and being in the radar could result in him or her being placed in removal proceedings in the future.

My partner/spouse entered under the Visa Waiver Program. Is there anything special about this program that prevents me from filing an I-130 on her behalf?

VWP entrants probably should not file unless and until there is greater clarification from USCIS. The Visa Waiver Program (VWP) allows citizens of certain countries, mostly Western Europe and other close allies of the U.S. to enter the country as tourists or short-term business travelers without first applying for a tourist visa (B1/B2) visa. The “waiver” portion of the entry means that the individual waives certain rights including, generally, the right to apply for a green card from within the U.S. (adjust status.) One exception to this general waiver is for spouses of U.S. citizens who may apply to adjust status even though they entered under the VWP. Spouses of LPRs cannot apply to adjust status from within the U.S.

It would be very risky for a USC to file an I-130 on behalf of her foreign spouse who entered under the VWP at this point. Although DHS has said that it is currently holding marriage cases in abeyance, we don’t know how long this policy will last. One of the rights that a VWP entrant waives when she enters under the VWP is the right to see an immigration judge before being removed from the U.S. (unless she has a claim for asylum.) So a foreign spouse who entered under the VWP faces a risk of immediate removal by DHS if it decides to resume I-130 denials.

If I do file a green card application for my spouse today, will she get work authorization?

We don’t know. Yesterday’s FAQ explained how a marriage-based green card application is a two step process, filing and I-130 and an I-485. For foreign nationals married to a U.S. citizen the two parts can be filed simultaneously. Moreover, once a foreign national files an I-485, she may also apply for an employment authorization document (I-765).

It is not clear from the DHS statement yesterday whether they are holding I-130s and I-485s or whether they are only holding part of the application. (Though, frankly, it would be illogical to deny the I-485 if there was no decision made on the I-130). So, we honestly don’t know what will happen with applications for work authorization.

It costs $420 to file an I-130 and $1070 to file an I-485, so, along with all the other legal considerations involved in choosing to file (or not), it is expensive, and DHS may decide to deny applications rather than hold them. There is no refund for a denial. An I-765, work authorization application, is free when submitted in conjunction with an I-485.

I am a lawful permanent resident (LPR) not a U.S. citizen (USC), can I file for my spouse?

It probably would not be helpful to do so at this point. When the petitioning spouse is an LPR and not a USC, the marriage-based application falls under the family preference system (category F2A). This means that the LPR spouse can file the I-130, but the spouse cannot file the I-485 until the I-130 is approved and the “priority date” is current. The waiting period between an approved I-130 and when the foreign spouse can file an I-485 is at least four years.

Since the clock doesn’t start to tick until the I-130 is approved, and since the best case scenario is that DHS holds the I-130 in abeyance, there would not be any immediate tangible gain by filing an I-130. Complicating matters further, the spouse of an LPR, unlike the spouse of a USC, must be in lawful status in order to adjust status from within the United States.

However, if an LPR becomes a citizen (usually LPRs can file to naturalize within 5 years of gaining LPR status), the I-130 then falls within the immediate relative category rather than the family preference system, and the foreign spouse can then submit an I-485.

Can I now apply for a fiancé/ee visa for my partner or spouse?

Unfortunately, a policy of abeyance will not help you if your partner or spouse is outside the U.S. It is extremely unlikely that the U.S. government would actually grant an application based on a lesbian or gay spousal relationship until there is a final resolution of DOMA. Holding applications in abeyance means that until there is resolution of DOMA applications won’t be denied -- but they won’t be granted either. So if you’re outside the country and the application won’t be granted, filing a fiancé/ee visa (K visa) application will not allow you to enter the U.S.