More News from DHS for Married Couples
By Victoria Neilson on 03/28/2011 @ 06:30 PM
As the situation for our families continues to change rapidly, please see the additional FAQ: More on Marriage.
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.
What does this mean going forward?
It is still hard to know exactly what this means until USCIS issues its final guidance. Nonetheless there are some frequently asked questions which we can answer now.
What does “hold in abeyance” mean?
The legal term “hold in abeyance” means that USCIS will hold spousal green card applications that is, the applications will not be granted, but they won’t be denied either for a period of time. USCIS has done this before for widows of US citizens while litigation was pending and for HIV-positive green card applicants before regulations lifting the HIV ban were finalized. At this point, we are not certain whether the abeyance policy will last until there is a final outcome in the DOMA litigation, or whether the abeyance will be more short-term.
For additional information about abeyance and specific answers related to various situations, see our full FAQ.
Who would not benefit from an abeyance policy?
If USCIS holds green card applications in abeyance, couples living in exile, or foreign spouses who are stuck abroad would not benefit immediately. If the green card application is neither approved nor denied, spouses who would need the application approved to immigrate to the U.S. would not be able to do so. Moreover, filing an immigrant visa petition would show evidence of an intent to immigrate to the U.S. permanently and would likely make it more difficult to obtain a tourist visa or student visa to the U.S.
Also, since abeyance would only apply to spouses who could adjust status but for DOMA, if a foreign spouse entered the U.S. without inspection (EWI), that is by crossing the border without a visa, then he or she would not be eligible to apply for a green card from within the U.S. (adjust status) and could face a 3 year/10 year bar if he or she leaves the country. This is the same law that applies to opposite sex married couples.
Should we be marrying now?
One of the most significant advantages to applying for a green card based on a marriage to a U.S. citizen is that so long as the foreign spouse entered with a visa, even if he or she overstayed, his or her unlawful presence here is “forgiven” and the spouse can still proceed with a green card application from within the U.S.
Should we be filing I-130s now?
Please consult an attorney first, but as we explained in our prior FAQ, the scales in favor of marrying have definitely tipped in most cases.
Don’t do anything without speaking to a qualified immigration attorney. The answer to this question will depend on your individual situation and what the DHS final guidance says.
Would a civil union or domestic partnership be the equivalent of marriage for immigration purposes?
No, unfortunately, one of the reasons that LGBT rights organizations have been fighting so hard for full marriage rights is that there are many benefits that married couples receive that other couples do not; the Immigration and Nationality Act recognizes “spouses” as immediate relatives but not “domestic partners” or “partners in civil unions.”
Could you explain, briefly, how marriage-based petitions work?
For many LGBT people who have been shut out of the marriage-based immigration system, this whole concept is completely new. Briefly, a U.S. citizen (USC) or lawful permanent resident (LPR) may file an immigrant visa petition (I-130) on behalf of his or her spouse. Spouses of USCS may also, simultaneously or at a later date, file an application for lawful permanent residence (I-485) and an application for an employment authorization document (I-765). For opposite sex couples, USCIS schedules a “green card” interview within a few months of the filing of the I-485 to determine if the marriage is bona fide, that is to make sure that the couple married out of an intent to share their lives and not just to receive immigration benefits.
Couples who are married for fewer than two years receive a “conditional green card” if all goes well after the interview. The conditional green card is valid for two years, after which time the couples must apply to remove the condition, that is to prove that the marriage is still valid.
I still have questions ...
LPRs may also sponsor their foreign spouses, but the process is more complicated. These applications fall under the “family preference system” which means that the I-130 must be approved first and the foreign spouse must wait, generally for several years, before filing the I-485. If the LPR’s spouse is in the U.S. without lawful status, he or she may not apply for the green card from within the U.S. (at least not until the LPR spouse naturalizes.)
If you have further questions about your situation, please contact Immigration Equality’s legal department.