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Because of this very real prospect, the US CIS has recently indicated that they will suspend all adjudications of cases involving same-sex couples until clarification can be obtained. Then almost immediately, they backtracked. However, this is obviously not the final statement on this issue as an overruling of DOMA by federal courts, or further pressure from the administration could force their hand in altering their policies. Additionally, the article on CIS backtracking does confirm that such cases are currently on hold, and to my mind this issue is far from resolved.

Last year, I wrote about the Uniting American Families Act, a bill that did not become law, and how it would have opened up the immigration prospects of same-sex couples. An alternative to this would be simply redefining marriage in a way that would do the same thing.

Immigration laws already provide that if a marriage is valid in the country or location of its enactment, it will be honored here, except in limited circumstances such as bigamy. The big hurdle then was DOMA which specifically defines marriage as between "one man and one woman." Therefore, should DOMA fall, or become an unenforced provision that the immigration authorities no longer consider good law, then perhaps that by itself would be enough to allow same-sex marriage to proceed through the immigrant visa petition process.

At least one Immigration Judge thinks this might be the case. In at least one Immigration Court, a judge terminated or at least postponed someone's removal proceedings to allow them to seek an immigrant visa before US CIS based on a same-sex marriage. This is the first reported instance of such an action being taken by an Immigration Judge.

I can not wait to be able to fight for clients on this basis now that such changes are rapidly taking place. It will be a major civil rights achievement to bring down DOMA and allow all legally marriage couples to enjoy the same rights and protections afforded straight couples. However, until DOMA is no longer good law, couples where one party is not in valid status, but who have not yet been placed in removal proceedings would still face a very real possibility of being placed in removal proceedings should they file an immigrant visa petition under the current law.