Immigrants Buoy Flood Recovery

Contributed by Kim Tremblay, Associate Attorney

Immigrants contribute to Colorado in many ways such as by starting businesses, voting and holding office upon naturalizing, and stimulating local economies with their spending. In addition, immigrants supply the skills and labor that are necessary to recover from natural disasters, as evidenced by events related to the recent catastrophic floods in Colorado. 

The U.S. government relies on foreign expertise and contractors to augment its capacity to respond to emergencies.  For example, one of our clients, HeliQwest International, a Canadian company with an office in Colorado, is participating in search and rescue operations in areas where people have become isolated due to flooding and road damage.  The Forestry Department is using one of HeliQwest’s helicopters and its personnel is heavily engaged in these flight missions.  HeliQwest has also provided helicopters for firefighting operations during the many forest fires that have ravaged our state in the last few years.  Many of their employees are Canadians who have highly specialized skills related to aircraft operation and maintenance.  There is a shortage of U.S. workers in this area.  Thus, these immigrants’ knowledge is indispensable to these types of operations.  Without access to services such as HeliQwest’s helicopter charters and supporting personnel, the United States government would not have all the resources it needs to fight wildfires and to ensure that people are out of harm’s way when disasters occur.        

Moreover, immigrants also supply the labor that is crucial to recovery from natural as well as human made disasters.  Indeed, many immigrants, included the undocumented, work in the construction business.  Immigrant workers were a major source of labor during the reconstruction of New Orleans after hurricane Katrina devastated the area in 2005.  There are claims that thousands of undocumented workers helped clean up ground zero after the September 11, 2001 attacks on the World Trade Center.  It is likely that many immigrant workers in our state will participate in reconstructing and repairing the roads, homes, and businesses severely damaged by flood waters and mudslides. Without them, labor would be scarce and this scarcity would certainly prolong the recovery period.

This kind of catastrophic event reminds us that not only do many migrants come to the United States to increase their quality of life, but that the quality of life in the United States depends on foreign workers as well.

 

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2013 Supreme Court Decisions Give New Hope to Noncitizens with Certain Criminal Convictions

Contributed by Aaron Hall, Senior Attorney

Noncitizens with certain criminal convictions may be inadmissible to the U.S., deportable from the U.S., or unable to obtain U.S. citizenship through naturalization.

 The categories of criminal convictions which cause immigration problems seem to have been slowly growing over the years as the Department of Homeland Security (DHS) argued that more and more crimes fit into these categories.  The categories of convictions have not necessarily been growing because of new laws written by Congress, but often because immigration courts have been interpreting existing laws more and more broadly and more and more harshly.

Two U.S. Supreme Court decisions from earlier this year, Descamps v. United States, and Moncrieffe v. Holder, may have been just what were needed to stop the slow and disturbing creep.  In Descamps, the Supreme Court reaffirmed that in most cases, the government cannot go beyond the language of the statute of conviction to try to prove that the conviction involved something worse than the words used in the statute itself.

 In Moncrieffe, the Supreme Court ruled that a Georgia offense for giving away a small amount of marijuana for no money could not be considered an aggravated felony for immigration law.  Like in Descamps, the Moncrieffe decision means that courts must stick strictly to the words of the statute of conviction in applying what is known as “the categorical approach.”  In effect, courts and immigration authorities should not be trying to find out what actually happened to get a conviction, but should just be looking at the language of the law that the defendant was convicted of violating.

Though these decisions are still new and the full effect on immigration law is yet to be seen, they undoubtedly open up new lines of argument for many noncitizens with certain criminal convictions who are fighting deportation charges or applying for immigration benefits.

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Planning for a Shutdown in Immigration-Related Services

Contributed by Amber L. Blasingame, Associate Attorney

 

Once again, we are looking into the abyss that we call “government shutdown” with fear and apprehension.  If Congress fails to agree on funding for the federal government or pass yet another continuing resolution on the many appropriations bills on the table, the federal government may shutdown on October 1, 2013.  So, at midnight on September 30, 2013, we will know whether we can visit the Rocky Mountain National Park next weekend, if you can get past the washed out mountain roads, or have to postpone a visit to the White House during your 8^th Grade field trip to Washington, DC.

The most recent government shutdowns occurred from November 13-19, 1995, and December 15, 1995, to January 6, 1996.  During the 5 day shutdown in 1995, the government furloughed approximately 800,000 employees.  The 21 day shutdown between December 1995, and January 1996, is deemed the longest federal government shutdown.

Not all of the federal government would shutdown during a government “furlough.”  The Office of Management and Budget (OMB) defines who works during a mandated federal furlough and who stays home.  Prior to 1995, employees were divided into “essential” and “non-essential” categories.  To not hurt anyone’s feelings, after 1995, the category titles were changed to “excepted” and “non-excepted.”  Although, the Department of Homeland Security (DHS), for variety, labels the categories “exempt” and “non-exempt” and refers to the shutdown as the “emergency furlough” or “federal funding hiatus” in a 2011 contingency plan.  Essential or excepted services include services necessary for national security including military and border patrol, public safety “to the extent that they protect life and property,” including air traffic control and emergency medical care, or “programs written into permanent law” that would not rely on appropriations for funding, such as Social Security services.  Also categorized under “excepted” are independently funded services, such as the United States Postal Service and the Federal Reserve.

The federal government requires that all agencies prepare, maintain, and update a contingency plan in the event of a government shutdown.  The last contingency plans were prepared or updated in 2011, during the last threat of a government shutdown.

The Department of State (DOS), in 1995, reported delays in processing 20,000 to 30,000 visa applications for foreign nationals.  In addition, 200,000 applications from US citizens for passports were shelved during the 1995 and 1996 shutdowns.  The DOS 2011 contingency plan looks much the same as the plan executed in 1995 and 1996.  Visa and passport functions, for the most part are non-excepted.  Emergency passport services will be provided, but “passport offices will be closed for the acceptance of new applications” and processing of passports may be limited to “expedited applications already in the system.”  The DOS anticipates “a significantly higher percentage of excepted positions abroad than in Washington,” to maintain diplomatic functions, global presence, foreign relations, international agency support, national security, and “[b]ecause many countries’ labor laws require that our local employees and contractors be paid regardless of attendance.”  DOS excepted services, among other essential services, include American citizens’ services, refugee assistance, and emergency visa services (such as “those for life/death or medical emergencies, humanitarian cases involving minor children, and diplomatic travel”).  Staffing at foreign posts may also be determined by international events and the nature of diplomatic relationships with host countries at the time of the shutdown.

DHS did not exist as a cohesive entity in 1995/96, but now oversees the majority of administrative, enforcement, and protective services related to immigration.  Law enforcement tops the list of “exempt” functions under DHS management, including “illegal alien interdiction” qualifying under “the exception of protection of human life or property.”  The United States Citizenship and Immigration Service (USCIS) would also continue functioning during a “federal funding hiatus.”  According to the DHS 2011 contingency plan, USCIS performs “Fee for service activities” which would not be affected by annual appropriation lapses.  DHS lists, among the “non-exempt” services in the 2011 contingency plan as follows: “auditing,” “regulatory, legislative, and intergovernmental affairs,” and “training and development.”

The Department of Justice (DOJ), which oversees the Executive Office of Immigration Review (EOIR), including the immigration courts and the Board of Immigration Appeals (BIA), 2011 contingency plan reduces personnel by 20% during a shutdown.  All law enforcement services and legislative support remain on duty.  While litigation services, including the courts, are divided between criminal and civil matters.  All criminal litigation is labeled as “excepted” and is scheduled to “continue without interruption as an activity essential to the safety of human life and the protection of property.”  Civil litigation, however, which includes immigration removal proceedings, is “curtailed or postponed to the extent” possible without compromising any “significant degree” of safety for human life or the protection of property.  The decision to curtail or postpone cases rests with the courts, but supervisors are reminded to limit staff to only what is essential to comply with any given court order and “to protect life and property.”

The Department of Labor Foreign Labor Certification office oversees labor certifications, labor condition applications, and prevailing wages, among several immigration related support services.  The Employment and Training Administration (ETA) manages the FLC.  The DOL 2011 contingency plan reduces ETA personnel as much as 97% in anticipation of a government shutdown.  The reduced staff does not appear to include FLC functions, as the only ETA functions listed on the plan include “maintaining support for Job Corps Centers training and housing [sic] approximately 44,000 students,” because the function is “necessary for the safety of life and [sic] Other funding source (by necessary implication).”

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Documenting Same-Sex Relationships

Contributed by Bryon Large, Senior Attorney

Throughout family-based immigration, applicants are frequently required to prove the familial relationship from which they are seeking benefits.  This can be as easy as showing a birth certificate or DNA test to demonstrate a parent-child relationship, and this can be as complicated as demonstrating an engagement between two foreign nationals residing in separate countries where little formal evidence exists of the relationship.  Same-sex couples often face a much more difficult challenge in documenting their relationships for a variety of reasons.

Lack of Recognition

Compared to their straight counterparts, same-sex couples have traditionally lacked formal recognition by governmental authorities.  What seems like a trivial certificate printed on a piece of paper to many couples is, for gay couples, a yearned-for formality still unavailable by most governments.  Couples that have been together for many years oftentimes have a difficult time demonstrating formal recognition of their relationship in countries which do not recognize marriage equality.  Many couples seeking immigration benefits for the foreign-national spouse are finding themselves, after years together, traveling to distant jurisdictions and suddenly becoming newlyweds.

 

Federal benefits, including taxes, were previously unavailable to same-sex couples, regardless of where they were married.  All same-sex couples, regardless of the length of their marriage, will have identified themselves as "single" for federal and state tax purposes.  Reliance on tax returns as being dispositive evidence of a relationship will be misplaced in LGBT cases.  Even couples who have been married for several years will be unable to produce this typically routine evidence.  Additional related evidence which will likely be unavailable would be life insurance, social security benefits, and military and veterans benefits for spouses. 

"Closet" Issues

While it may sound cliché that some gays still live in the proverbial closet, the effort to "out" one's self in every aspect of life can be a daunting task.  It is not uncommon for straight couples to seek utilities, bank accounts, and joint liabilities together, it can be an intimidating experience for same-sex couples to venture into similar tasks.  Whether actual or perceived, many gay couples find it challenging to walk into a bank together and sign on to the same bank account or subscribe to some of society's most basic services.  It's not to say that gay couples hold back from admitting to being gay, but, rather, the fear of judgment that we have all experienced from an unfriendly clerk on the other side of the transaction.  This becomes even more difficult if the couple resides in a less progressive country, state, or small town in rural America.

Many feel it easiest to take care of business alone and get the essential needs taken care of.  Even more difficult is the case where a spouse or partner is shown on paperwork as a roommate, friend, or emergency contact, rather than the spouse or partner.  Overcoming that second-class title to the immigration examiner may prove to be difficult to a couple applying for immigration benefits

 Immigration attorneys will encourage their clients to trudge forward in this difficult area and document the relationship in the areas of finances, assets, and obligations.  Such efforts to co-mingle assets and share in the burdens and responsibilities of bills and other liabilities goes a long way to proving that the couple is, in fact, in a bona fide relationship.

Non-Traditional

Few would consider gay couples not to be non-traditional.  Non-traditional is essentially "the" buzzword in politically correct descriptions of same-sex couplehood.  Non-traditional financial structures inside a gay relationship can frequently be less about living in the closet and more about a desire for each partner to carry their own weight.  Such progressiveness is frequently seen in gay couples and non-traditional financial arrangements are predominant in the community.  Gay couples are likely to be less interested in co-mingling cash and other assets and often find themselves sharing in certain expenses, but keeping other obligations separate.  This leads to added complications in documenting the relationship for the immigration examiner.  The couple will find themselves more likely to have to explain why their relationship is less traditional in financial benefits and obligations than they are accustomed to seeing with straight couples.

Lack of Family Support

While the perception of same-sex couples continues to evolve in society - quite progressively in the United States as of late - not every person around the world is ready to embrace the idea of attending their cousin's gay wedding.  Lack of family support can be a difficult situation to explain to an immigration examiner, particularly if they have limited experience with gay family members.  And the lack of family support can be both about rejection from the family, as well as about the fear of rejection.

The fear of rejection generally stems from an LGBT person willing to "come out" to their family or desire to conceal their sexual orientation from their family.  Immigration examiners are often accustomed to seeing letters of support from straight couples' families.  Such letters are likely to be missing from a gay immigrant's file when the immigrant or his or her spouse has chosen not to share the relationship with the rest of the family.  Examiners should not expect every LGBT person to "out" themselves to their family, and petitioners and beneficiaries should be able to have an expectation of privacy about their personal life.

Worse than the mere fear of rejection or the desire for privacy is the actual rejection that many in the LGBT community end up facing.  Disapproving families, particularly those from more conservative cultures and/or religions, will make the documentation of family support even more challenging.  It is not uncommon for somebody to reject a gay child or reject their relationship.  Immigration officers investigating the bona fides of a marital union can run into serious roadblocks if they show up at a family member's home inquiring only to be told that the family member doesn't exist or does not want to be heard from.

Lack of Children

Common evidence of a bona fide marriage is whether children have been born to the relationship.  A lack of children born to a same-sex couple is not uncommon.  These little bundles of joy are noticeably missing from the majority of LGBT households, although not completely absent.  The idea here is to seek alternative evidence of the relationship that what practitioners and examiners typically look to in documenting the evidence.

Evidence Issues

Straight and gay couples alike frequently find themselves struggling to identify documentary evidence of their relationship.  Frequently couples will advise their attorney that the already-sparse evidence they have provided is all they are able to provide.  At that point, diligent practitioners should ask clients to go through their wallets and identify accounts and memberships they may already have together.  Couples should be asked to review their bank statements to look for charges that evidence their relationship.  I frequently ask them to collect their junk mail in a shoebox for review for a few weeks or a couple of months.  Couples may frequently find themselves receiving junk mail because their address ends up on some marketing company's mailing list, which is excellent evidence that they reside at the same address.  Finally, practitioners may consider requesting a credit report to identify accounts and addresses identified there-within. 

Name Issues

It is far less common for LGBT couples to assume their spouse’s last name.  Historically, the refusal of a wife to assume her husband’s last name would be a cause for concern before an immigration officer.  While this poses less of an issue as time goes on, we expect same-sex spouses to not assume their spouse’s last name as frequently as their opposite-sex counterparts.  While some couples have chosen to hyphenate names, mix names, or change names, many couples also decide to keep their last name as it was prior to the marriage.

Previous Straight Marriages

The coming out process can vary from person to person.  Practitioners and examiners alike may struggle with how to perceive past marriages with members of the opposite sex or children born of opposite sex relationships.  Applicants and petitioners with opposite-sex marriages in their past should be prepared to explain their pasts, as well as their coming out stories, when appropriate to do so.  Because an opposite-sex relationship might be in one or both persons' histories does not negate the bona fides of the current marriage.  Every person has their own coming out story - some of which are much easier than others.  And each person has their own story of coming out to themselves, or identifying themselves as LGBT.  Today we live in a much more accepting society and the stories of young LGBT persons are more likely to involve identification of sexual orientation at a younger age.  However, the story is not always the same for everyone and many people have not been able to fully identify themselves as LGBT until several years into an opposite-sex relationship.  It is a fact of life that some marriages end after several years together - and even children born of the marriage - before one party decides to leave the marriage after identifying as LGBT.

When children have been born of a past opposite-sex relationship, it will be extremely important to include documentary evidence, particularly photographs and affidavits, of the current relationship, including the children, as appropriate.

Also related is the sometimes-forgotten "B" in LGBT.  Bisexuals frequently have a difficult time identifying as lesbian or gay or straight.  It is not uncommon for a bisexual male or female to enter into a long term relationship with a person of a different gender of their last partner. 

Workplace Issues

Identification of sexual orientation can sometimes be difficult in the workplace, as well.  Many people are not willing to disclose their sexual orientation to their employer, or list their same-sex partner or spouse as their partner or spouse.  For straight couples, practitioners and examiners frequently look to who is listed as a spouse or emergency contact with a person's employer.  Furthermore, because of the lack of historical federal recognition of the marriage, as well as the current lack of state recognition in a majority of jurisdictions, people will seldom identify their spouse as a spouse on employer paperwork.  Finally, the identification of one's sexual orientation may not always be a safe career move for some individuals when the potential for negative consequences exists.  Practitioners and examiners alike should keep in mind that many jurisdictions still permit employment discrimination based on sexual orientation.

Documenting same-sex relationships can be easy or difficult.  It is crucial to explore the relationship and determine what evidence can be obtained and used.  And, frequently more important, documenting why there is a lack of evidence in the relationship is equally important.  It is important for spouses and their attorneys to think outside the box and try to determine what better quality evidence might exist.  And immigration officers will also learn to adapt to how LGBT couples document their lives differently than they are accustomed to with their opposite-sex counterparts.

 

 

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6 Lesser-Known Benefits of LGBT Immigration

Contributed by Bryon Large, Senior Attorney

Since the Windsor v. United States decision striking down the Defense of Marriage Act (“DOMA”), many people have become familiar with the immigrant benefits for same-sex couples married in jurisdictions that recognize marriage equality, such as spousal benefits for married couples.  But under the Immigration and Nationality Act, there are dozens more benefits available to married couples than the run-of-the-mill marriage-based “green card.”  The following is a non-inclusive sampling of some of the benefits now available to couples:

1.      Fiancé/Fiancée Benefits – What comes before gay marriage?  Gay engagements, of course!  For those dual-national couples that have been residing in different countries and not yet legally married, fiancé/fiancée benefits are available to same-sex couples now.  Immigration lawyers are routinely filing Form I-129F petitions for those couples that have not yet married in a jurisdiction that recognizes marriage equality.

2.      Non-Immigrant Benefits – There exists an entire alphabet soup of visas for people to come to the United States, generally for some sort of employment purpose, and we should keep in mind that not all same-sex couples are dual nationals.  For example, the H-1B visa is a very common visa issued to specialty workers coming to the United States for a six-year period.  In recent years, long-term domestic partners could qualify for B-2 visa status, as visitors for pleasure.  Now, since the Windsor decision, same-sex spouses can qualify for H-4 visas, as spouses or derivatives on the H-1B visa.  H-4 visa holders are still not authorized to work, but generally find it easier to obtain drivers licenses while residing in the United States.  There are a variety of derivative visa benefits for other employment-based non-immigrant visas, as well.

3.      VAWA Benefits – Married victims of domestic violence can qualify for either deferred action or residency under the Violence Against Women Act (“VAWA”).  A bit of a misnomer, VAWA immigration benefits are available to married victims of domestic violence regardless of their gender, when the abusing spouse is either a United States citizen or lawful permanent resident, or when the foreign national is the other parent of an abused child and the abuser is a United States citizen or lawful permanent resident.  Following the Windsor decision, VAWA benefits are available to those same-sex spouses who have fallen victims of physical abuse or extreme emotional cruelty by their United States citizen or lawful permanent resident spouses.

4.      Derivative Immigrant Beneficiaries – Aside from spouses of United States citizens and lawful permanent residents being obvious beneficiaries of the Supreme Court’s Windsor decision, other derivative benefits apply under the Immigration and Nationality Act, as well.  In family-based and employment-based immigrant visas, same-sex spouses are also recognized as derivative beneficiaries, as are the children and stepchildren created of the relationship.  For example, when the priority date becomes current for a sibling of a United States citizen comes current, that sibling’s entire family, including the same-sex spouse, becomes eligible to immigrate to the United States, as well.  Another example is when an employer sponsors a skilled worker or professional for an EB-3 visa, the same-sex spouse likewise becomes eligible as a derivative on that visa petition.

5.      Cancellation of Removal – When an undocumented foreign national is being removed or deported from the United States, their removal may be cancelled and their status may be adjusted to that of a lawful permanent resident when they have satisfied to the Immigration Judge that, among other things, their expulsion from the United States would cause an “exceptional and extremely unusual hardship” to their United States citizen or lawful permanent resident spouse, parent, or child.  Now that marriage equality is recognized on a federal level, both the definition of “spouse” and “child” are affected in that federal law will recognize the same-sex spouse for cancellation of removal purposes, as well as a stepchild relationship created by the union.  Furthermore, the high standard of “exceptional and extremely unusual hardship” may be easier to reach in some cases now as the type of hardship a gay spouse might suffer in another country is much more likely to be exceptional and extremely unusual, depending on the country conditions of that foreign country and the treatment of LGBT persons there.  If there are children of the relationship, the treatment of the entire family and the home country’s views and/or stigma on a gay or lesbian couple raising children could also be demonstrated as additional hardship.  And even further, when the United States citizen or lawful permanent resident spouse is also HIV+, the Immigration Judge will also evaluate how the HIV status and treatment in the other country might impact their hardship, as well.

6.      Asylum Derivatives – Persons seeking asylum in the United States based on their sexual orientation, or on other bases, would also be able to have their spouses admitted to the United States as asylee derivatives, as well.  An asylum derivative would enjoy the same rights and privileges as the principal asylee, including employment authorization and the opportunity to apply for lawful permanent residency one year after admission, but would not be required to present their own case for persecution to obtain the benefit.  Prior to the Windsor decision, if a same-sex couple were fleeing persecution in their home country, seeking refuge in the United States, each spouse would have to file their own independent case for asylum in the United States and be granted separately.  Should either spouse have not been able to make their case, this would have been fatal to the couple remaining together.  Now, only one spouse has to make their case and the other spouse would be admitted as a derivative on the principal asylee’s application.

The Windsor decision opened the door to a myriad of benefits for LGBT persons under the Immigration and Nationality Act by placing same-sex married couple on the same playing field as their opposite-sex counterparts.  The above is only a sampling of some of those benefits.  Prior to the Supreme Court’s decision, it was much more difficult to put together a sound strategy for LGBT couples wishing to remain together despite rather difficult laws.  Today, in this post-DOMA world, options are plentiful.

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