USCIS Grants Deferred Status to Man on Tourist Visa so He may Care for Sick Husband


A gay couple on Long Island learned last month that they have achieved a victory, albeit a temporary one, in their struggle to keep one of them in the United States legally. After several New York politicians spoke on the couple’s behalf, United States Citizenship and Immigration Services (USCIS) granted a reprieve to Tim Smulian, a 65 year-old citizen of South Africa, so that he may stay and care for his husband, 70 year-old New York native Edwin Blesch.

Smulian and Blesch were married in South Africa in 1999. Their marriage is legally recognized by both the state of New York and Suffolk County, where they reside. Federal law, under the Defense of Marriage Act (DOMA), does not recognize their marriage. Smulian is in the United States on a tourist visa, which he must renew annually. Since 1999, he and Blesch have spent six months in the U.S. and six months abroad. Blesch is suffering from HIV, and he suffered a series of mini-strokes a few years ago, along with other complications from his illness. He is therefore no longer able to travel with Smulian. Smulian is trained to care for HIV patients and is Blesch’s primary caregiver.

With Smulian’s status as a “tourist” and Blesch’s poor health, they faced separation of at least six months each year. Smulian’s visa was set to expire at the end of 2011, so they applied to adjust Smulian’s status to legal permanent resident as the spouse of a United States citizen. USCIS would normally deny the application, since DOMA prohibits the federal government from recognizing the legal validity of a same-sex marriage. They asked USCIS to use its discretion to grant them an exception, partly on humanitarian grounds and partly because DOMA has been the subject of multiple legal challenges.

Several politicians advocated on Smulian’s and Blesch’s behalf, including New York Senators Charles Schumer and Kirsten Gillibrand. USCIS decided in early February to grant Smulian “deferred action” status, meaning the government will take no action on Smulian’s case for at least a year. This does not grant Smulian any specific immigration benefit, but it does give him and Blesch time to find a way to proceed with their green card application.

Smulian’s tourist visa, also known as a visitor visa, is a “nonimmigrant” visa for “pleasure, tourism or medical treatment.” It requires that the visa holder intend to return to his or her country of origin when the visa expires. It often also requires that the visa holder physically leave the country in order to renew the visa, which is what Smulian and Blesch had to do every year.

With Blesch too ill to travel, Smulian bore the risk, in theory at least, that the government would not renew his visa after he left the U.S. Now they have an opportunity to explore their options and see if there is a way for Smulian to obtain legal permanent residence. DOMA still stands in their way, but immigration authorities have discretion on many issues to grant immigration benefits in specific cases. This is only a temporary reprieve for the couple, but they still have options.

Ohio immigration visa lawyer Gus Shihab helps people understand and navigate the U.S. immigration system, which includes the constantly-changing politics of our immigration laws. For a free and confidential consultation, contact us through our website or at (800) 625-3404.

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Photo credit: ‘Rings’ by Eduardo Melo on stock.xchng.