Published on:

Immigration Officials Allow Man on Tourist Visa to Stay in New York to Care for His Ailing Partner

812054_47630563_02172012.jpgA South African man living on Long Island has gotten a reprieve from immigration officials, allowing him to stay in the U.S. to care for his husband, who is a U.S. citizen. Edwin Blesch, age 70, is from New York. He and Tim Smulian, a 65 year-old citizen of South Africa, were married in South Africa in 1999. Both the state of New York and Suffolk County recognize their marriage, but they could not apply for immigration benefits as a married couple under federal law. For over ten years, they spent six months on Long Island and six months in South Africa, or elsewhere abroad, in order to comply with the terms of Smulian’s tourist visa.

Blesch, who is HIV-positive, suffered a few small strokes and other complications from his illness, and now he cannot travel. Smulian is his primary caregiver. Smulian’s visa was set to expire at the end of 2011. The prospect of spending six months apart every year with Blesch in poor health led them, in March 2011, to file an application for a green card for Smulian as the spouse of a United States citizen. They asked U.S. Citizenship and Immigration Services (USCIS) to exercise its discretion to allow an exception to certain aspects of federal law, in this case the Defense of Marriage Act (DOMA), and approve the application. DOMA is the federal law defining marriage to be exclusively between a man and woman, and it has been the subject of several court challenges in recent years.

Several New York politicians, including both of the state’s U.S. senators, Charles Schumer and Kirsten Gillibrand, lobbied USCIS on behalf of Blesch and Smulian to allow Smulian to stay in the U.S. The couple received word earlier this month that USCIS had granted Smulian “deferred action” status. He can remain in New York lawfully for another year, but he has not been granted any further immigration benefits.

A tourist visa, also known as a visitor visa, is a type of nonimmigrant visa that allows someone to come to the United States for tourism or medical treatment. The key feature of any nonimmigrant visa is the requirement that the visa holder leave the U.S. before the visa expires. People with nonimmigrant visas must often physically leave the country in order to apply to renew the visa, which is what Smulian has had to do for over a decade.

People with nonimmigrant visas who marry United States citizens can apply to adjust their status to that of a legal permanent resident, also known as a green card. This would allow them to remain in the United States indefinitely. The marriage must be recognized under federal law, however, and DOMA generally precludes USCIS from recognizing a same-sex marriage. Even with the reprieve, it is not yet clear what options Smulian might have to get around DOMA, but they at least have some time to consider their options now.

The New York immigration lawyers at Samuel C. Berger, P.C. help immigrants seeking visas to come to, or remain in, the United States. To schedule a consultation with one of our skilled attorneys today, contact us online or at (212) 380-8117.

More Blog Posts:

Benefactor Pays Undocumented New York College Student’s Tuition Bill After Reading About Her in the Newspaper, New York & New Jersey Immigration Lawyer Blog, January 19, 2012
Afghan Water Polo Team Keeps Training Despite Visa Setback, New York & New Jersey Immigration Lawyer Blog, January 17, 2012
Sister of New Jersey Cancer Patient Granted Visa to Try to Save Her Life, New York & New Jersey Immigration Lawyer Blog, December 14, 2011
Photo credit: ‘Champagne for two’ by Roger Kirby on stock.xchng.