The US Department of Homeland Security

New guidance from the Department of Homeland Security stipulating that gay and lesbian bi-national couples are families spells out three criteria for immigration officials who are determining whether to exercise prosecutorial discretion in potential deportation cases.

The memorandum from U.S. Immigration & Customs Enforcement was long sought by LGBT advocates and lawmakers seeking greater protection for bi-national same-sex couples, who may be faced with separation under the nation’s current immigration code if the immigrant in the relationship doesn’t have legal status in the United States. It was obtained exclusively Tuesday by the Washington Blade and can be downloaded here.

The guidance offers three criteria for immigration personnel as they determine whether a same-sex relationship would “rise to the level of a ‘family relationship'”:

Same-sex relationships that rise to the level of “family relationships” are long-term, same-sex relationships in which the individuals

• are each other’s sole domestic partner and intend to remain so indefinitely;

• are not in a marital or other domestic relationship with anyone else; and typically maintain a common residence

• and share financial obligations and assets.

Notably, the guidance doesn’t mandate that the couples be in a legal same-sex marriage as it lays out criteria for when they would be eligible for prosecutorial discretion.

ICE maintains that being in a family relationship is one factor that immigration officials should consider when determining whether to exercise prosecutorial discretion and other issues may trump familial status.

“Officers, agents and attorneys must consider the totality of circumstances presented in an individual case,” the guidance states. “Family relationships may be outweighed by criminal history, prior immigration violations, or other indicia that an individual meets ICE enforcement priorities.”

The guidance is dated Oct. 5 and signed by three senior officials within ICE: Executive Associate Director Gary Mead, Executive Associate Director James Dinkins and Principal Legal Director Peter Vincent. According to the heading, it was distributed to ICE field office directors, chief counsel and special agents.

Lavi Soloway, an immigration attorney and co-founder of Stop the Deportations, commended DHS for issuing the guidance, saying it marks the first time ever the Obama administration “has put in writing a policy to protect gay and lesbian couples who are threatened with deportation.”

“We are grateful that the Obama administration has finally issued written guidelines that we can take into court when we fight deportations,” Soloway said. “We continue to represent numerous same-sex couples in immigration courts around the country who are facing imminent deportation, and this document will help us finally resolve those cases so that no couple is torn apart.”

Soloway added the guidance is “evidence that the Obama administration is able to develop innovative, interim remedies” to help LGBT people. Calling the guidance a “great start,” Soloway said DHS should follow up by opening up “humanitarian parole” to reunite same-sex partners if one is living in exile and placing in abeyance marriage-based green card applications for bi-national same-sex couples to ensure they can stay together in the United States.

The memorandum follows a June 2011 memorandum from ICE that laid out criteria for when immigration officials should exercise prosecutorial discretion in cases that may be a low priority for deportation. That earlier guidance said one of the relevant factors was “the person’s ties and contributions to the community, including family relationships.” The Obama administration previously told media outlets that bi-national same-sex couples were included in this category, but LGBT inclusion wasn’t until now spelled out directly to immigration officials.

The Blade reported last week that Secretary of Homeland Security Janet Napolitano delivered a letter to Congress informing lawmakers that DHS would issue this follow-up guidance in response to a letter from 84 House Democrats requesting the update. But LGBT advocates have been pushing for updated guidance for more than a year since ICE first issued its memorandum on prosecutorial discretion in June 2011.