Tuesday, November 12, 2013

Thanks for Your Service

Veterans' Day was yesterday.  Of course, we want to say thank you to all of the men and women who served in the U.S. armed forces; those who sacrifice to keep us free.  But, I want to honor and say thanks to another group of people.  They may not be official members of the U.S. armed forces, but they put themselves on line just as much.

I am talking about U.S. contractors who go in the trenches with our troops overseas.  Let me give you a little background.

I have a client from Afghanistan.  He works as an interpreter for the U.S. Army.  His job takes him in the trenches with our military, to translate for them.  While with his unit, he is in as much danger as our troops, but without a weapon.

He came to see me today.  He's a good family man, and I was happy to see him.  But, as we discussed his legal issue, he nonchalantly told me that he was home on medical leave because he had been hit with an IED.

I was shocked.  He looked fine.  He told that he was better off than many in his unit.  The shrapnel  hit him in the back.  But U.S. soldier lost hands and other limbs to this device. 

He had his wife and two young children with him in my office.  And at that time, all I could think was thank God this family still had this fine young man around to take care of them.

So, while technically not a member of the armed forces, I still find it very appropriate for us to remember and thank those who serve as contractors for our military services.  Thank you all for putting your life on the line to assist in completing the mission.

Tuesday, July 9, 2013

Marriage Equality and Full Faith and Credit

I had my first consultation with a same sex couple in a post Defense of Marriage Act (DOMA) world. Without giving away any specific facts, this was a gay couple in a long term relationship living in Virginia seeking immigration advice. I suggested that if they were to get married in the District of Columbia, we could file a visa petition on behalf of the non-citizen spouse. But, there would be one issue that could complicate matters. 

That is, under current Virginia law a same sex marriage performed in a state where it is legal will not be recognized. I warned that USCIS could use that as a reason to deny the petition. That is, while the marriage would be legal where it was performed, it would not be legal in the state of residence. 

In my honest opinion, I don't think this Administration would split hairs like that. To the contrary, given how quickly USCIS approved a visa petition for a married gay couple two days after the Supreme Court decision striking down DOMA, I think this Administration would likely approve a petition involving a DC marriage even if the couple is living in Virginia. Nonetheless, my opinion could be wrong, and thus I had to warn my potential clients up front. 

But this does bring up an interesting issue. The Constitution requires the states to give full faith and credit to the actions and records of another state. Thus, a marriage performed in Ohio, for example, must be recognized in Virginia. 

Still, I believe that some states will stick to their guns, and continue to refuse to recognize same sex marriages until forced to do so by the Supreme Court. I think Virginia and North Carolina are among those states. 

The next round of litigation may be over the full faith and credit clause of the Constitution. In fact, I would not doubt that some organization has already drafted up the Complaint, ready to file for the right case. In the end, I believe that same sex marriages will have to be recognized in all states.  Otherwise, the full faith and credit clause would be meaningless. Virginia may not be required to allow same sex couples to marry within its borders. But eventually, Virginia may be required to recognize a DC same sex marriage as legal. 

By: William J. Kovatch, Jr.

Tuesday, July 2, 2013

Immigration Reform Heads to the Republican Controlled House of Representatives

Immigration reform passed the Senate last week with a vote of 68-32.  The issue now heads to the House of Representatives, where it's future is less certain.

While almost 70 Senators voted for the reform bill, the fact remains that only 14, or less than one-third, of Republican Senators voted for it.

Unlike the Senate, the House is controlled by Republicans.  Speaker of the House, John Boehner, is not likely to bring proposed legislation to the floor for a vote unless a majority of the House Republicans are in favor of it.  Although Republicans are in favor of certain reform measures, there is one issue that Republicans may strongly contest.

Namely, the pathway to citizenship for those already present in the country may turn out to be a measure House Republicans won't swallow.  In a way, Republicans may be guided by the politics of self-preservation.  On the one hand, PBS reports that most House Republicans are in safe districts.  This means that if those Republicans vote in favor of a pathway to citizenship, they are more likely to face a primary challenge from a conservative candidate angry over immigration reform than a strong Democratic challenge in the November 2014 elections.

Then, there is the issue of what would happen to the future electoral chances of the Republican Party if millions of Latinos already present in the United States become full citizens with voting rights.  Although it is a mistake to consider Latinos as a single, unified group (Cubans tend to vote differently than Mexicans, for example), in generally Latinos tend to vote Democratic.  In the last election, over two-thirds of the Latino vote went to President Obama.  Republicans will be very reluctant to endanger their future electoral success by voting for a pathway to citizenship.

That is not to say that Republicans oppose immigration reform.  Jeb Bush and Clint Bolick published an op-ed piece in the Wall Street Journal making a Republican case for immigration reform.  Their emphasis was on reducing family based immigration in favor of more employment based immigration.  The two viewed this as the House of Representative's opportunity to make changes to the Senate proposal, more in line with conservative values.  The House, for example, can insist on greater border control measures.  Regarding the path to citizenship, Bush and Bolick would make the civics test for naturalization more challenging.

In the end, Bush and Bolick state that Republicans have more in common with immigrants, such as "beliefs in hard work, enterprise, family, education, patriotism and faith."  Bush and Bolick urge Republicans to stop being an obstacle to reform, "and instead point the way toward the solution."

Of course, there may be a way to push for reform, with providing some political cover for House Republicans.  This is through the use of the discharge petition.  If 218 House members sign a discharge petition, then the legislation would come to the floor of the House for a vote despite opposition of the House leadership.   This is a rare occurrence, as it requires a few members of the majority party to join forces with the minority party in order to bypass House leadership.  In normal circumstances, this would mean reprisals against the those members of the majority party who side with the minority party.

A discharge petition, however, may be exactly what House Republican leaders need to allow immigration reform to come to a vote without making it look like their fingerprints are on it.  That is, if there is pressure from Republican leaders outside of the House to bring the measure to the floor, the House leadership could work behind the scenes to encourage those Republicans in the House who support the measure to sign the discharge petition and force the measure to come to the floor.  Then, the House leadership and the majority of the House Republicans could go back to their districts and claim that they had nothing to do with immigration reform and even voted against it.

This is just one vision of how things could proceed in the House.  As of this moment, it is just speculation.  Steve Benen of MSNBC reports that the House already has a bipartison group working on its own version of immigration reform legislation.  If nothing else, immigration reform may continue to dominate Washington politics for a few months before we know what the outcome will be.

By:  William J. Kovatch, Jr.
(703) 837-8832

Monday, July 1, 2013

Confirmed: Same Sex Couples May Obtain Immigration Benefits

The New York Times is reporting that the first green card to a same sex couple was issued on Friday, June 28, 2013.  Julian Marsh, a U.S. citizen from Ft. Lauderdale, Florida, married Traian Popov, who is from Bulgaria and applied for a green card.  Mr. Popov received word that his green card was approved by email, an unusual move which signifies the desire of the Obama Administration to move quickly to come in compliance withe the Supreme Court's decision in United States v. Windsor.

If you are a same sex couple looking to apply for immigration benefits, call me at (703) 837-8832 for an appointment.

By:  William J. Kovatch, Jr.
(703) 837-8832

Friday, June 28, 2013

Marriage Equality Was Discussed in Crafting Senate Immigration Reform Bill

As I've posted on this blog a few days ago, the Supreme Court's decision in United States v. Windsor removed the last legal impediment to allowing same sex couples to apply for immigration benefits for the foreign born spouseThe New Yorker reports that this topic was actually discussed during the negotiations of the Senate bill on immigration reform.

According to Ryan Linza, the Democrats in the Gang of Eight wanted to include a provision in the bill which would have given gay and lesbian couples the right to apply for immigration benefits.  The Republican members opposed the measure, with Senators Marco Rubio and Lindsey Graham threatening to withdraw support if the measure were added.

The Supreme Court's decision, however, has apparently made this debate moot.  Because the Federal Government cannot discriminate against those in lawful same sex marriages, that would seem to indicate that immigration benefits must be granted on equal footing.  Indeed, the Washington Blade reports that the Office of Personnel and Management has already laid out a plan to provide Federal benefits for Government employees in same sex marriages.

By:  William J. Kovatch, Jr.
(703) 837-8832

Immigration Reform Passes Senate; What Will Happen in the House?

On June 27, 2013, immigration reform passed the Senate by an overwhelming 68-32 vote.  The bill which passed the Senate was broad set of reforms, from asylum law changes to the creation of immigration benefits for a broad set of people currently present in the country without status.  The most controversial portion of the bill appears to be the creation of the Registered Provisional Immigrant status, which provides legal status to alien present in the country since on or before December 31, 2011.

Reform now faces a tough test in the House of Representatives, which is controlled by the Republicans.  The Chairman of the Republican National Committee, Reince Priebus, has stated that the country needs comprehensive immigration reform. Speaker of the House, John Boehner, however, has made it clear that the House will not simply take up the Senate bill and vote on it.  Instead, the House will craft its own bill, based on the leanings of Republican majority.  Some analysts believe the House will pass a series of smaller bills, each addressing a discrete topic of immigration reform.  Other believe that the House will pass a comprehensive bill, and will send the issue to a joint committee with the Senate to negotiate a compromise.

One of the biggest sticking points for House Republicans could be the Registered Provisional Immigrant status, which some view as amnesty for illegal actions.  Of course, Republicans may pressure to find a way to appeal to Latino voters, who voted for President Obama in the last election at a ratio of 3 to 1.

By:  William J. Kovatch, Jr.
(703) 837-8832

Wednesday, June 26, 2013

Supreme Court Decision May Bring Changes to Immigration Law

Today, in the case of United States v. Windsor, the U.S. Supreme Court affirmed the holding of the U.S. Court of Appeals for the Second Circuit which found the Defense of Marriage Act to be unconstitutional.  The Defense of Marriage Act, or DOMA, provided that the Federal Government could not recognize same sex marriages as legal for the purposes of Federal law.

The case itself involved a lesbian couple, who at the time could not marry in their home state of New York (this has since changed as New York legalized same sex marriages).  The couple went to Ontario, Canada, where same sex marriage was legal, and wed.  The couple moved back to New York.  When one spouse died, the surviving spouse sought to take advantage of the marital deduction under the Federal Estate Tax.  This was prohibited under DOMA.  The surviving spouse sued, and won before the U.S. Court of Appeals for the Second Circuit.

In affirming the Second Circuit's decision, the Supreme Court first noted that the definition of who can get married has been an issue left to the several states.  When a state has chosen to recognize same sex marriages as legal, the effect of DOMA to prohibit Federal benefits to those married couples violated the Equal Protection clause of the U.S. Constitution.

The decision itself involves Federal Estate Tax law.  However, under the same logic, there is no reason why it cannot also be applied to U.S. immigration law. 

U.S. immigration law itself does not define "marriage" or "spouse."  However, several immigration benefits are open due to marriage.  Up until now, DOMA has been the main impediment to having the Federal Government grant those benefits to a foreign born spouse of a same sex marriage.

For example, the foreign born spouse of a U.S. citizen is considered to be an "immediate relative," and as such is entitled to an immigrant visa without waiting in line under the preference system.  With DOMA being found unconstitutional, a U.S. citizen should be able to file an I-130 visa petition on behalf of a same sex spouse, so long as the marriage itself is legal.

Also, in many instances, when a person is granted a visa, that person can obtain a visa for certain derivative beneficiaries.  A specialty worker with an H-1B visa, for example, can have a spouse receive a temporary visa as well.  Under the Windsor decision, that H-1B visa holder should be able to apply for a derivative visa for a same sex spouse so long as the marriage is legal.

The Obama Administration is very likely the best administration to test this theory.  In September of last year, the Administration announced that long-term same sex partners would be considered U.S. relatives for the purposes of granting some form of discretionary relief, such as deferred action or prosecutorial discretion.  With such a track record, it seems likely that the Administration would now look favorably on a visa petition filed by a U.S. citizen on behalf of a same sex spouse.

By:  William J. Kovatch, Jr.
(703) 837-8832

Link to the Supreme Court's Opinion in United States v. Windsor

The Supreme Court has found provisions of the Defense of Marriage Act to be unconstitutional.  The case is called United States v. WindsorYou can find the text of the opinion at this link.

The case specifically addresses U.S. estate tax law.  However, I believe that it clears the way for immigration benefits for same sex couples.  This article from the Washington Times agrees with me.

By:  William J. Kovatch, Jr.
(703) 837-8832

Same Sex Couples, Let's Challenge Immigration Law

The Supreme Court has struck down a key provision of the Defense of Marriage Act. I believe this means that the Federal Government now cannot deny immigration benefits to same sex couples married where their marriage is legal. 

Do you want to apply for permanent residency for your same sex spouse. Call me for an appointment. 

By: William J. Kovatch, Jr.

Asylum Law Changes May Be Coming

The U.S. Government may grant a person asylum if that person can show that he or she has a reasonable fear of persecution because of race, religion, nationality, political opinion or membership in a particular social group.  Reasonable fear has been defined by the Supreme Court as at least a 10% chance of the persecution occurring.  Currently, an asylum application must be filed within one year of the person entering the United States.  If asylum is granted, the asylee can apply for permanent residency, and then citizenship.

If a person has not filed an asylum petition within one year, that person could still be eligible for withholding of removal.  However, the standard is higher.  The person would have to show that he or she is more likely than not to face persecution.  Those granted withholding of removal are not later entitled to apply for permanent residency or citizenship.

If the immigration reform bill currently before the Senate becomes law, a major change to U.S. asylum will take place.  The one year deadline in which to file an asylum petition will be removed.  But that's not all.  All of those people who were granted withholding of removal solely because they did not meet the one year deadline will be eligible to have their status changed to that of an asylee.

Currently, the Government protects the one year deadline zealously in Immigration Court proceedings.  Removing the deadline would open this form of relief to numerous people who would otherwise be ineligible to remain in the safety of the United States.

By:  William J. Kovatch, Jr.
(703) 837-8832

Tuesday, June 25, 2013

Drunk Drivers Beware!

Currently, a conviction for driving under the influence of alcohol (DUI), or driving while intoxicated (DWI), is not an automatic ground for inadmissibility or deportation.  But, all of that could change if the Border Security, Economic Opportunity, and Immigration Modernization Act becomes law.

Section 3702 of the Act creates a new ground of inadmissibility and a new ground of deportation: Habitual Drunk Drivers.  A Habitual Drunk Driver is defined as a person who has three or more DUI or DWI convictions.

One key difference between the new ground of inadmissibility and the new ground of deportability is that in order for an alien to be deportable, at least one of the convictions must occur after the passage of the Act (click here for a discussion on the difference between inadmissibility anddeportability).  Because this provision is not in the section of the Act defining inadmissibility, that could lead to the conclusion that Congress intends for this provision to be applied retroactively for those who are present in the country illegally, or who apply for admission in the future.  That is, even though DUI and DWI convictions do not currently render an alien inadmissible, if the Act passes, then those aliens who are present in the country illegally and who currently have three or more DUI or DWI convictions could find themselves in immigration trouble.

By:  William J. Kovatch, Jr.
(703) 837-8832

Monday, June 24, 2013

Deferred Action Recipients May Get Preferential Treatment in Immigration Reform

For those who waited to file an application for the President's Deferred Action for Childhood Arrivals (DACA) program, this may be the time to do it.  Under the current version of the Senate bill, those who received deferred action under the DACA program may automatically qualify for Registered Provisional Immigrant (RPI) status.  The bill gives the Secretary of Homeland Security the discretion to grant RPI status to DACA recipients who have not otherwise engaged in conduct that would render the DACA recipient ineligible for RPI status.  In fact, those who received DACA benefits may be immediately eligible for citizenship upon becoming a permanent resident.

DACA is the program announced by the President last year where certain young people who entered the United States before the age of 16 could be granted a reprieve from deportation and work authorization.  The requirements for DACA eligibility can be found here.

Current estimates are predicting passage of the bill in the Senate with as many as 70 votes.  How the bill will fare in the House, which is controlled by Republicans, remains to be seen.

By:  William J. Kovatch, Jr.
(703) 837-8832

Sunday, June 23, 2013

What is Registered Provisional Immigrant Status?

With a vote coming up in the Senate, one of the hot topics in Washington is immigration reform.  While passage of immigration reform is by no means guaranteed, even critics of current reform bill, such as Rush Limbaugh, believe that passage in the Senate is likely.  It is prudent, therefore, to prepare for the passage of immigration reform, and in particular the creation of a new immigration benefit, Registered Provisional Immigrant.

Under the current bill (click here for the text of the Senate bill, S. 744), Registered Provisional Immigrant, or RPI, status can be granted to those who are already present in the country illegally.   

  • have been present on or before December 31, 2011;
  • have continuous physical presence in the United States since December 31, 2011;
  • pay a $500 fine along with the filing fee for the application;
  • pay all taxes due;
  • not have been convicted of an aggravated felon as defined by U.S. immigration law, any other felony, three of more misdemeanors, an offense in a foreign country that would otherwise render the applicant inadmissible under U.S. immigration law, or unlawful voting;
  • is not a threat to national security;
  • does not have a communicable disease such as tuberculosis;
  • is of good moral character.

Dependent spouses and children of the applicant may also be eligible.

While the bill has not passed, potential applicants would be prudent to start collecting documentation necessary to prove eligibility.  This is of particular importance because the bill contains a deadline of one year from the date of the publication of the application procedures in the Federal Register in order to make the application.

What documents are you likely to need?  At this time, there is no definitive list.  However, using other programs as a guide, certain requirements can be expected:

  •  Proof of identity:  birth certificates, passports, documento unico de indentidad (DUI)
  • Proof of physical presence:  official mail such as utility bills, tax records, school records, church records, leases, marriage certificates (if married in the United States), birth certificates of children born in the United States
  • Proof of taxes paid: tax returns, W-2 forms, 1099 forms, employment records
  • Criminal issues: criminal background reports from your local police, criminal background reports from the FBI, criminal background reports from your home country, certified copies of all judgments and proof of completion of sentence (including any proof of payment of fines, fees or restitution)
  • Good moral character:  letters from friends, relatives, employers, religious leaders

Those who qualify for RPI status will be eligible to apply for full permanent residency after 10 years.

By:  William J. Kovatch, Jr.
(703) 837-8832

Friday, April 19, 2013

The Boston Bombings Should Not Prompt Us to React out of Xenophobia

Now that this chapter of the Boston Marathon bombings has come to a close, and a new chapter about to open, I'd like to start this blog entry with a prayer.  Dear Lord, thank you for the wisdom and skill of the FBI, and the Boston area police and rescue departments.  Thank you for allowing the authorities to apprehend this man alive.  Be with the family of all the victims and grant them your strength as they learn how to recover from this horrible chain of events. Watch over the souls of all of those who lost their lives this week.  Guide us with your wisdom and your sense of justice as we as a society respond to these events.  Amen.

As I sit here, watching the coverage on CNN and Fox News, I cannot help but feel a certain sense of apprehension.  I am apprehensive that we will allow fear and xenophobia guide our response.

The xenophobia was certainly present in the media coverage during the week.  Thursday, as I was listening to Sean Hannity (yes, I am a fan), he kept harping on the 20 year old Saudi student who was a victim of the bombing but was questioned earlier in the week by the authorities.  Hannity kept insisting that certain unnamed sources, whom he did not identify, had told him that the student was scheduled to be deported on Tuesday, that there was a secret meeting between the President and Saudi officials that afternoon, that because of that meeting the deportation might be placed on hold, and that this was all being kept quiet.

I was immediately struck by the complete ignorance and irresponsibility Hannity had shown.  First of all, having gone through a number of deportations and voluntary departures with my clients, I know that ICE will not divulge when an alien is being deported.  It is considered a security risk, and they just won't do it.  I can't imagine how someone in the know would break that rule by informing Sean Hannity, even if it was off the record, knowing that Hannity would then go on the air and publicize that information.

The second problem is that people are not just simply deported.  We have a legal system.  Even aliens present in the United States illegally may have certain forms of relief available under the law.  A person with a student visa cannot be deported without going to Immigration Court, and being found in violation of that status.  Hannity's statements seemed to betray an ignorance of how the system works.

Finally, I was deeply disturbed by this focus on the student's nationality.  It played upon the fear and distrust many have for Arabs in this country.  Never mind that the Sa'ud family itself is a close ally with the United States.  Never mind that painting with such a broad brush has the effect of perpetuating fear and bigotry against Arabs, when only a very small minority want to do us harm.

In the end, Hannity's focus on the Saudi student proved misguided, as we later learned that the suspects were ethnic Chechens, not Saudis.

But even then, the reaction I heard from some continued to disturb me.  When tuning in to the Rush Limbaugh Show on Friday, I heard Mark Steyn railing against the immigration system, and how the Government could have let these two live in our country.  I saw some of my "friends" in social media have similar reactions, complaining of how we could let people from these areas of the world come to our country.  Even Senator Grassley has used these chain of events in debating immigration reform.

Has the immigration system failed us?  From what is being reported now, these two men were granted refugee status almost twelve years ago.  They spent their teenage years in the United States.  One became a citizen of the United States.  We are not talking about someone who snuck across our borders illegally.  We are not talking about someone who misused a temporary visa to gain entry to the United States to perpetrate these attacks.  We are talking about a family who escaped violence and persecution overseas, and who has been present here for over a decade.  Whatever hate entered these two men's hearts, entered after they had come to this country.  Overhauls in the immigration system would have not likely prevented the Boston attack.

If there was a failure in the immigration system, it was a failure in enforcement.  Specifically, the older suspect apparently had a conviction for some sort of domestic violence.  Yes, certain crimes of domestic violence make a person, even a permanent resident, deportable.  But, at this point, the only information available on that is vague at best.  Domestic violence encompasses a wide array of crimes, not all of which would necessarily be deportable offenses.  Without more information, I cannot criticize immigration enforcement as it applies to these two individuals.

What I do know is that knee jerk reactions, especially when it comes to the immigration system, are unwise and unwarranted.  We can't simply ban a whole class of nationalities from entering the United States because we think that they are unfriendly to us.  Perhaps those who propose such a thing forgot our shameful past of detaining Japanese families during the Second World War for no reason other than ethnicity.  No.  We are the United States, and we are supposed to rise above such bigotry (a sentiment reinforced in me tonight, after having taken my children to see that fabulous movie about Jackie Robins, 42).

Plus, the politics of the Middle East and the Russian interior have very little to do with one of the main issues to be addressed in immigration reform: the millions of undocumented aliens already present in the United States.  The overwhelming majority of those aliens are Latinos who came to this country simply looking to work hard and send money home to their families.

No, the evil perpetrated upon Boston this week had very little to do with immigration policy.  Putting the brakes on immigration reform now, in reaction to the Boston bombings, would simply be a reaction out of xenophobia and bigotry.  We are better than that.

By:  William J. Kovatch, Jr.
(703) 837-8832

Thursday, April 18, 2013

Details of the Proposed Immigration Reform

The Gang of Eight introduced its proposal for immigration reform in the Senate today.  The bill is 844 pages long, and will take time to read, digest and analyze.  However, one organization, the Migration Policy Institute, has published a detailed comparison of the proposals introduced in this bill, and the proposals made in 2006 and 2007.

The heart of the proposal appears to be to require the Department of Homeland Security to create strategies to provide greater border security, and to implement those strategies, in exchange for permitting those who are present in the United States without legal status to be given provisional status, which could eventually lead to citizenship.

First, Homeland Security must submit strategies for protecting the southern border within six months of the passage of the bill.  Once the strategies have been submitted to Congress, then a new status, Registered Provisional Immigrant ("RPI"), is created.  The Secretary of Homeland Security must then certify to Congress and the President that the plans have been submitted, implemented and substantially operational or complete.  A mandatory employer verification system (E-Verify) and an electronic exit system at air and sea ports must also be implemented.  Once all of these conditions have been met, then those with RPI status may apply for permanent residency.

RPI status must be renewed every six months.  Eligible aliens must have been continually present in the United States from December 31, 2011.  Those with RPI status must learn English, and pay all taxess before they can adjust to permanent residency.  However, certain deportees who were present before December 31, 2011 may apply for re-entry under RPI status, if they were not deported for criminal reasons and other criteria are met.

To received RPI status, there will be a $500 fee at filing, and a $500 fee upon renewal.  To adjust to permanent residency, there will be a $1,000 fine, plus a processing fee ($400 fine for agricultural workers). 

It should be stressed that this is just a proposal.  It is subject to mark-up and amendment in the Senate.  It must also pass the House of Representatives and be signed by the President before it becomes law.  Thus, changes should be expected.  More details on the proposal shall follow.

By:  William J. Kovatch, Jr.
(703) 837-8832