Monthly Archives: June 2013

SCOTUS, POTUS, and DOMA: Victory for Same-Sex Binational Couples

gaywedNice quote from the President, regarding today’s Supreme Court decision in U.S. v. Windsor striking down the bulk of the federal Defense of Marriage Act (DOMA), which had defined marriage as solely between a man and a woman (and thereby blocked all manner of federal rights and benefits to anyone who didn’t fit the definition):

“I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. . . . I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”

So, it looks like it’s full steam ahead for implementing this law in the immigration context. Up until now, same-sex marriages didn’t count for a thing if the couple wanted to obtain a green card or visa for the foreign-born person. Today, these marriages do count, just the same as anyone else’s. All that matters is that they were legal in the state or country where they took place (so same-sex couples who live in places where same-sex marriage is NOT legal will have to find someplace else to get married in order to take advantage of this ruling).

Already, a New York immigration judge has reportedly halted the deportation proceedings of a gay Colombian man who is legally married to a U.S. citizen. Another male couple in New York, scheduled for a marriage-based green card interview with U.S. Citizenship and Immigration Services (USCIS) yesterday, had their interview postponed until after the DOMA decision — with hopefully an approval on the horizon. (It must have taken some guts to apply for the green card in the first place, knowing that if DOMA was upheld, their case would be denied and the noncitizen could be placed in deportation proceedings.)

The immigration bar has, so far, come up with no reasons why same-sex immigrant couples shouldn’t start filing their applications for green cards right away — with the small caveat that this process is harder than you might think (even for opposite-sex couples), and we still don’t know how quickly USCIS will actually adapt to this new regime. Don’t be surprised if you get some weird requests for evidence during the application process.

This decision should also allow noncitizens coming to the U.S. on temporary visas (H-1B, L-1, J-1, and so on) to obtain derivative visas for their same-sex spouses. (Here, at least, the U.S. government showed some flexibility in the past, by issuing the same-sex spouse a tourist, B-2 visa.)

Scheduling an in-person consult with an immigration attorney is an excellent idea.

For more information, see Nolo’s update, “Same-Sex Marriage Now a Basis for U.S. Lawful Permanent Residence (a Green Card).”

Fee Hikes an Overlooked Aspect of Proposed Immigration Reform

mex border fenceThe legislation being hammered out in the Senate right now contains some pretty expensive elements. Specifically, committing even more resources than have already been thrown at the project of turning the U.S. border with Mexico into an impenetrable barrier is going to cost big bucks. Some $40 billion, to be spent on new border security agents, new drones, new fencing, and so on.

And where will this money come from? Much media attention was devoted recently to a U.S. government report showing that, if the bill is passed, the U.S. government and economy will actually get a boost. New taxpayers will contribute to the system, more undocumented immigrants will start new businesses, and all will hum along happily.

But that shouldn’t obscure a basic reality of the legislation as it stands, containing a recent compromise amendment from Senators Corker, Hoeven, and others. As noted in a recent press release from the American Immigration Lawyers’ Association (AILA), the spending on this bill isn’t going to come from the taxes and economic activity generated by these hardworking immigrants. It looks, for all the world, like it’s going to come straight from the immigrants pockets, as fees when they file their applications for immigration benefits.

AILA explains, “a startling and little-publicized requirement of the amendment would be that all ‘mandatory enforcement expenditures under the Act’ would be funded not by appropriated funds but by additional fees charged to those petitioning through the regular, legal immigration process.”

How high could these fees go up? They’re already in the thousands of dollars for many applications.

The proposed amendment says not only, “the Secretary may adjust the amounts of the fees and penalties . . .  except for [certain] fines and penalties,” but “If the Secretary determines that adjusting the fees and penalties set out [above] will be insufficient or impractical to cover the costs of the mandatory enforcement expenditures in this Act, the Secretary may charge an additional surcharge on every immigrant and nonimmigrant petition filed with the Secretary in an amount designed to be the minimum proportional surcharge necessary to recover the annual mandatory enforcement expenditures in this legislation.”

Ouch! Sky’s the limit!

If you’re an immigrant who already has a path to a visa or green card, the best advice I can give is to make sure the process moves forward as quickly as possible, to win the race against time and this new legislation.

Happy Anniversary, DACA!

obamaThe program known as Deferred Action for Childhood Arrivals or “DACA” was first announced by President Obama on June 15, 2012, just over a year ago. It gave undocumented young immigrants a means of avoiding deportation and obtaining work permits. 

Met at first with skepticism — “Will it be just a way to identify and deport undocumented people?” “Will it disappear in a few months if Obama is not reelected?” “Will it become irrelevant if Congress passes an immigration reform bill?” — DACA has gone on to provide some measure of stability, not to mention work permits, for over 520,000 young people. (See the USCIS “Data on Individual Applications and Petitions” page for monthly updates.) A relatively few 19,000 applications were rejected.

Although the rate of applications has reduced markedly since the program was first announced, it is still possible to apply! See the DACA-related articles on Nolo’s website for more information. And as we’ve seen, Congress is still in a tug-of-war over comprehensive immigration reform.

Is There Still a Chance for Same-Sex Couples to Win Immigration Rights in the Reform Bill?

gemA lot of interesting immigration-related matters have been hitting my email inbox lately. First there was this video on Upworthy, with the heading, “I’d Like To Think I’m An Informed Straight Ally, But I’m Embarrassed I Didn’t Know This.” If Brandon didn’t know, I’m going to guess a few other people also don’t know the following:

Regardless of its legality in the state or country where it took place, a same-sex marriage still, today, does not offer the noncitizen a path to a U.S. green card. And there’s precious little the couple can do to get the noncitizen any other long-term visa or right to stay in the U.S., either. The welcome mat is out for heterosexual married couples — potentially even if they met online a few months ago and have barely spoken in person, one might note — but federal law draws a bright line on this one. The video posted on Upworthy gives a wrenching look at an American/British male married couple who are trying to deal with the all-too-brief amounts of time that U.S. law lets them spend together.

It would be so easy to fix this: In fact, the language proposed by Senator Patrick Leahy as an amendment to the draft immigration reform bill is a model of simplicity, stating “an individual shall be considered a ‘spouse’ and a marriage shall be considered a ‘marriage’ for the purposes of this Act if (1) the marriage of the individual is valid in the State in which the marriage was entered into; or (2) in the case of a marriage entered into outside of any State, the marriage is valid in the place in which the marriage was entered into and the marriage could have been entered into in a State.’’

A few weeks ago, however, the headlines were all about the disappointment of LGBT advocates as Leahy announced that he was withdrawing this amendment, in the interests of passing the bill as a whole.

Yet according to the blogosphere and the American Immigration Lawyers Association, he has refiled it. And according to another email I received today, from Emily Saliers of the Indigo Girls, a briefing is being held for Congressional staffers today at which she and other LGBT advocates will testify to why immigration reform “must include all families.” Emily says, “My partner Tristin is from Canada. We met nearly ten years ago when Tristin was serving as a substitute tour manager for the Indigo Girls. We soon became friends and then slowly fell in love. Even though we are a completely committed family (which includes our six-month old daughter Cleo!), there is no way for me to sponsor Tristin for a green card to keep our family together. This is the story I will be sharing on Capitol Hill today.”

You’d think I’d be humming an Indigo Girls tune after writing this blog. (And I’d be happy to, really.) But the song going through my head is actually Lenny Kravitz’s “It Ain’t Over Til It’s Over.”