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
info@kovatchimmigrationlaw.com

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 spouse.  The 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
info@kovatchimmigrationlaw.com

Second Circuit Decision on the Defense of Marriage Act May Have Immigration Ramifications

In this link, you will be directed to an article on mine talking in greater detail of the possible immigration consequences of the Second Circuit case of Windsor v. United States.

Could Same-Sex Couples Eventually Apply for Visas?

A decision by the U.S. Court of Appeals for the Second Circuit may open the door to permit same-sex couples to apply for visas.

The case is Windsor v. United States. It involves the application of the federal estate tax to the estate of a woman who had married her same-sex partner in Canada.  The couple lived in New York, where Thea Clara Spayer died.  Her same-sex spouse, Edith Windsor, inherited her property, and claimed the marital deduction when calculating the estate tax due.  The deduction was disallowed, citing the Defense of Marriage Act.

The Defense of Marriage Act limits the Federal Government to recognizing only a marriage between one mane and one woman when applying all federal law.  The Second Circuit found this to be in violation of the Equal Protection Clause of the U.S. Constitution.

While the decision involves the federal estate tax, the Defense of Marriage Act has also been applied to prevent a U.S. citizen from submitting a visa petition for a foreign-born same-sex spouse.  If the decision stands, it could open the door for same-sex couples to apply for immigration benefits previously denied.

The jurisdiction of the Second Circuit is limited to Connecticut, New York and Vermont.  But, there could be an incentive for same-sex couples to move to one of those states now, and file a visa petition in order to force the Federal Government to follow the decision in the immigration context.

The text of the decision can be found here.

An article from the New York Times on the decision can be found here.

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

Homosexual Partners to be Considered "Relatives"

Janet Napolitano, Secretary of Homeland Security, announced that Immigration and Customs Enforcement (ICE) would consider same-sex partners from a homosexual relationship to be "relatives" when the Department of Homeland Security is considering whether to grant some form of discretionary relief from removal or deportation.

What this means is that if an undocumented alien has a same sex partner who is a U.S. citizen or permanent resident, DHS would consider that partner to be a U.S. relative form the purpose of granting prosecutorial discretion.

Prosecutorial discretion refers to the authority that ICE attorneys have in deciding which cases to bring to Immigration Court, and which cases to ignore or close before seeking an order of removal.  In June of 2011, ICE issued a memorandum stating its policy to concentrate its resources on aliens with criminal records or who pose a threat to U.S. security.  In deciding whether to exercise prosecutorial discretion, ICE is to consider a number of factors.  One is whether a person has ties to relatives in the United States.

In a letter responding to Jerrold Nadler of the U.S. House of Representatives, Napolitano states that ICE will be instructed to consider long-term same-sex partners as U.S. "relatives" for the purpose of determining whether to grant prosecutorial discretion.

The new policy may open the door for undocumented aliens who are in a long-term homosexual relationship with a U.S. citizen or lawful permanent resident to other forms of discretionary relief as well.  For example, based on this policy, it may be possible to argue that same-sex partners should be considered as U.S. "relatives" when applying for deferred action.

Deferred action is essentially a promise by the U.S. Government that it will not seek the removal of an alien who is otherwise removable.  When the Government grants deferred action, it has the authority to issue employment authorization as well.  Whether to grant deferred action is a matter of discretion.  Recently, the President announced that he would grant deferred action to certain young people who were brought to the United States before the age of 16.  This is the deferred action for childhood arrivals (DACA) program.

But, the DACA program is not the only basis for granting deferred action.  The Government can decide that there are enough mitigating factors present to permit a person who does not have a valid immigration status to stay in the United States.  One factor that the Government takes into consideration is whether a person has any U.S. relatives, such as a spouse or children.

Napolitano's directive does not go so far as to say that U.S. citizens can file a visa petition to obtain permanent residency, or a green card, for a same sex partner who is also an alien.  The Defense of Marriage Act prohibits the U.S. Government from considering a same sex partner to be a spouse, even if the homosexual couple has married in a state or country where same sex marriage is legal.  To change this policy would take an act of Congress.

The text of the letter can be found at this link:

http://www.kovatchimmigrationlaw.com/12-3384-Nadler-S1-Signed-Response-09.27.12.pdf

Much of what is written in the press on this is confusing.  Here are some links to the best of the articles I've seen so far:

http://www.nytimes.com/2012/09/29/us/homeland-security-puts-it-in-writing-on-immigration-policy-and-gay-couples.html?_r=0

http://latino.foxnews.com/latino/news/2012/09/28/dhs-to-ease-immigration-rules-for-gay-couples/http://latino.foxnews.com/latino/news/2012/09/28/dhs-to-ease-immigration-rules-for-gay-couples/

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