Will You Qualify for the President's Program?

President Obama has announced a program to assist those who are present in the United States who have either spouses or children who are U.S. citizens or permanent residents.  The President will grant those who are eligible for the program deferred action, meaning that he will promise not to start deportation proceedings against them.  Those who are granted deferred action may also be granted legal authority to work in this country.

If you think you are eligible for the President’s program, call me at (571) 551-6069.  We can sit down and discuss your situation.

If you make an appointment to see me, you will first sit down with my of my bilingual staff members to collect your information.  Once we have collected your information, I will review it and discuss whether you are qualified for the program.

There will be a consultation fee of $200.  If you are eligible for the program, that money will be credited against the legal fee for helping you apply for this program.

The legal fee will depend on how difficult your case is. 

If you have all of the documents that are required to apply, such as your birth certificate, your marriage certificate, your children’s birth certificates, proof that your spouse or children are U.S. citizens or permanent residents, and proof of presence in the United States for the past five years, the legal fee will be $750.

If you do not have all of your documents, the legal fee will be $1,000.

If you have two or more convictions for misdemeanors, or other problems with your eligibility, the fee will depend on how difficult your case will be.

These fees are in addition to any filing fees required by the Government to apply for the program.

If you need your documents translated, we can translate them for you.  The fees for translations are:

·         $50 for birth certificates

·         $75 per page for all other documents that are type-written

·         $100 per page for all documents that are hand-written.

We can translate from Spanish and French.

By:  William J. Kovatch, Jr.

(703) 837-8832

(571) 551-6069 (ESP)

wkovatch@kovatchlegalservices.com

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
info@kovatchimmigrationlaw.com

Video Blog: USCIS Field Office in Fairfax for a Marriage Visa Interview

I was at the Fairfax Field Office of USCIS this morning to attend a marriage visa interview.

Immigration Law Provides Opportunities to Bring Foreign-Born Relatives to the United States

U.S. citizens and lawful permanent residents can petition for visas to bring certain foreign-born relatives to live in the United States.  How fast the process works depends on whether the petitioner is a citizen and which relative is involved.

Spouses, minor children, and in some cases parents of U.S. citizens are defined as "immediate relatives."  The process for immediate relatives tends to be much quicker than other relatives.  Immediate relatives, for example, do not have to wait for a visa number to become available to immigrate.  Immediate relatives also have more liberal rules to allow them to adjust to status if they are present in the Untied States after being inspected and admitted.

Adult children and siblings of U.S. citizens, and spouses and children of permanent residents can also immigrate. But, the numbers are limited by Congress to 400,000 per year.  This is called the preference system.  Visas become available based on the date that the visa petition is filed.  For some countries, it is not unusual to have to wait years for a visa to become available.  In most cases, these relatives must process their visa applications at their local U.S. Consulate before being admitted as a permanent resident.

For more information on the availability of family-based visas, and the process, please click here to see my article.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com