Living in Two Closets: What Colorado Civil Unions Mean for Immigration Law

Contributed by Bryon Large, Senior Attorney

The proverbial closet that many LGBT people have found themselves in at some point in their lives can be an even greater claustrophobic experience for those who also find themselves hiding in the closet of being an undocumented person in the United States.  While the passage of civil unions in Colorado can bring some legal dignity to those same-sex couples in long-term relationships, those couples seeking benefits at the federal level, such as in immigration, find themselves with a continuing journey for legal recognition.

The Colorado Civil Union Act was recently passed by the Colorado legislature and signed into law by Governor Hickenlooper.  The Act, largely codified at § 14-15-101 et seq., goes into effect on May 1, 2013.  For the most part, the Colorado Civil Union Act gives nearly all of the same protections as a heterosexual marriage under Colorado law, while going to great pains to distinguish a civil union from a marriage.  Among other things, the legislature was greatly concerned with running afoul of the Colorado Constitution’s definition of a marriage being between one man and one woman.[1]

Regardless of what title Colorado or any other state in the Union places on partnerships in a civil union, the Immigration and Nationality Act (“INA”) is still subject to the highly controversial Section 3 the Defense of Marriage Act (“DOMA”)[2], which defines marriage as a legal union only between one man and one woman for federal purposes.  That said, regardless of whether in Colorado we call it a civil union or a marriage, or regardless of which state may have legalized same-sex marriage, for immigration and other federal purposes, same-sex unions and marriages are not recognized.  And, because they are not recognized, those benefits otherwise attainable to their heterosexual counterparts are not available to same-sex couples in a marriage or civil union.

The bad news behind us now, there may be good news on the horizon.  The highly anticipated Supreme Court ruling on the constitutionality of DOMA is expected in June.  Should the Court overturn the law, those couples in a same-sex marriage would be able to seek any immigration benefit afforded to spouses under the INA.  What will remain an open question, however, is how partners in lawful civil unions will be treated for federal purposes.  The United States Attorney General, Eric Holder, has asked the Board of Immigration Appeals to determine, among other things, whether a partner in a civil union would be considered a “spouse” under state law, as well as under the INA, but that case has since been administratively closed by the Board.[3]  While theoretically this could be a simple legislative fix by Congress, it is sure to be a highly contentious issue. 

Should the Court determine that Section 3 of DOMA is not unconstitutional, nothing will change in the current statutory framework of the INA.  However, all is not lost.  The Department of Homeland Security, with the blessing of the White House, has developed in recent months broader policies with regard to the treatment of same-sex bi-national couples, particularly in the recognition of relationships for discretionary relief from removal.  Officers and attorneys for DHS are to look to whether a person has been in a long-term relationship with a same-sex partner, and look for evidence of the relationship comparable to that of opposite-sex couples.  Oftentimes, foreign nationals are spared from deportation by being able to demonstrate these ties.  However, this policy in non-binding and non-enforceable.

Most practitioners agree that, even though the federal government does not currently recognize same-sex marriages, and potentially will not in the near future, it is important for bi-national couples to document their relationships in the same means that opposite sex couples do.  Couples should be encouraged to comingle assets, use joint bank accounts, designate each other as beneficiaries on insurance and cash accounts, and, yes, enter into civil recognition of their relationships such as marriage, civil unions, or domestic partnerships.  While the decision to marry or “partner up” is a deeply intimate decision that should be made for the benefits of the civil union or marriage and not solely for any immigration benefit, couples are encouraged to enter into civil unions or marriages as a means of demonstrating their life-long commitment to each other.  Should ICE come knocking at the door, that certificate will be a very important document to seeking discretionary relief from deportation.

It is true that many people live in more than one closet.  Many members of the LGBT community also find themselves in hiding due to their lack of immigration status.  The best plan is to sit with a trusted immigration practitioner and develop a strategy for what to do if the worst should happen.

---

[1] Colo. Const. Art. II, Sec. 31

[2] 1 U.S.C. § 7

[3] Matter of Dorman, 25 I&N Dec. 485 (A.G. 2011)

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
• 

New I-9 Form Effective Immediately

Contributed by Amber Blasingame, Associate Attorney

 

Effective immediately, for all new hires, employers are encouraged to use and complete the new Form I-9 Employment Verification Eligibility (I-9 Form) revised on March 8, 2013 (03/08/2013). A 60 day grace period applies to allow employers time to update their business practices, during which time use of the forms published prior to March 8, 2013, may still be acceptable. However, on and after May 7, 2013, the Department of Homeland Security mandates that all employers use only a version of the I-9 Form dated 03/08/2013, or later.

Presently the only available versions of the revised I-9 Form are found at www.uscis.gov in a .pdf format. The new I-9 Form is two pages in length. The I-9 Form and its accompanying instructions and acceptable document list total 9 pages. All new hires must be presented with or have access to the I-9 Form, the list of acceptable documents to verify identification and employment eligibility, and the accompanying instructions. As a best practice, USCIS recommends that employers duplex (double sided copy) the two pages of the new I-9 Form and write the full name of the employee on the top of both pages. Employers may also duplex hard-copies of the instruction pages provided to employees to save paper as well.

Aside from new hires, mandatory use of the new form may verify for rehires and reverifications. Going forward, if an employee updates or changes any information in Section 1, for example date of birth or name, the employee must complete a new I-9 Form. For reverification of employment authorization for existing employees, the employer must complete Section 3 of the new I-9 Form. However, any employee rehired within three years after prior termination may complete Section 3 of the form the employee completed upon his prior hire date.

A Spanish version of the form is available on-line as well. However, only employers in Puerto Rico, may use the form and have employees actually complete the form in Spanish. Employers in the United States may provide the Spanish version as reference to an employee, but must complete and maintain the English version of the form.

Although USCIS has granted a 60 day grace period, USCIS prefers that employers begin using the new I-9 Form immediately. Whether using the old or new form, employers must complete the forms correctly and should be consistent in their practices. For more information, employers may go to I-9 Central or consult the updated Form M-274, Handbook for Employers, both available at www.uscis.gov.

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
• 

Immigration Consequences of the Sequester: ICE Releases Detainees Across the Country

Contributed by Kim Tremblay, Associate Attorney

In the last two months, everyone has been talking about the sequester, the $85 billion in budget cuts the federal government has started to make March 1.  This is the result of the Budget Control Act of 2012, which included a clause that would trim the U.S. deficit by one trillion dollars over the next ten years with massive across the board cuts to domestic and military programs.  The sequester calls for cuts of the same percentage to all the programs involved and does not allow higher cost cutting of programs that are inefficient or less essential.

There are many unanswered questions about the sequester.  Federal government officials are unsure exactly how and when some of the cuts will affect the public and the economy. 

However, certain government agencies are already taking steps to deal with the cuts and the sequester’s consequences are becoming concrete.  For example, Immigration and Customs Enforcement (“ICE”) released hundreds of immigrant detainees across the country at the end of February.  ICE detains some immigrants in deportation proceedings while they await their hearings.  It has released certain immigrants without criminal histories and immigrants with non-serious criminal histories on supervised release.  These immigrants are obliged to check in with ICE periodically and to attend their deportation hearings.  This measure is said to be saving ICE over $100 per day per released detainee.  ICE is currently detaining over 30,000 immigrants at an estimated cost of $122 and $164 per day.  The agency may release more low detention priority immigrants in the future to accommodate budget cuts.      

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
• 

USCIS Officially Begins Accepting I-601A Provisional Waivers of Unlawful Presence Today

Contributed by Kim Tremblay, Associate Attorney

In January 2013, the Department of Homeland Security announced the final rules for the I-601A provisional waiver process for immediate relatives of U.S. citizens who are physically present in the United States.  Starting today, individuals can apply for this waiver while in the United States and then to proceed with their immigrant visa interview abroad once the waiver is approved. 

This will allow spouses and children of U.S. citizens to move forward with the immigration process while limiting the time that families are separated. 

The waiver is not available to everyone and applicants must follow specific processes before they can apply for a waiver.  Potential applicants should consult with a licensed immigration attorney or an accredited organization before applying for a waiver to ensure that they are indeed eligible and have followed to proper steps.

For More Information on I-601A Provisional Waivers, click here.

 

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
•