27 March 2011 ~ 0 Comments

USCIS Grants De-Facto Deferred Action For Same-Sex Bi-National Couples

LGBT Families for Immigration Reform

Image by ep_jhu via Flickr

Update: USCIS is no longer going to deny green card applications (I-130s) filed by married same-sex binational couples. They will hold them in abeyance till a decision can be reached on the Defense of Marriage Act (DOMA). Not that holding in abeyance does not mean processing.

But it does create a case of defacto deferred action. Now what the hell do I mean by defacto deferred action? It’s not deferred action in law but deferred action in fact — usually, pending applicants for green cards are eligible for work authorization at absolutely no cost. Eligibility for work authorization confers social security numbers to applicants and hence, drivers’ licenses, and other necessary identity documents. If you are filing an I-130, you may as well file the application for work authorization at no additional cost, until USCIS tries to fill this loophole created by prosecutorial discretion.

However, here are some caveats. It is unclear whether this is a true shift in policy and whether it creates permission to stay. Visa overstayers may still risk a 10-year bar if they stay in this country without authorization. Yes, I know this creates a permission to work and not permission to live scenario — welcome to my life. Those who entered without proper documents may still be subject to removal proceedings and deportations. And most importantly, the policy only applies to married couples and not merely partners. And if you are an unmarried undocumented adult child of a U.S. citizen or legal permanent resident like me, it is unclear whether your same-sex marriage to a U.S. citizen or legal resident would benefit or doom you.

As always, my advice is to get a good immigration lawyer if you are part of a same-sex binational marriage.

Also, I’m glad to report I’ve a paid fellowship this summer from the San Francisco Chapter of the National Lawyers’ Guild to work at the National Center for Lesbian Rights on LGBT Immigration issues.

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