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