Same-Sex Family Units Recognized

Contributed by Bryon Large

By now, most practitioners and immigration advocates are aware of the June 15, 2011 Morton Memoranda regarding the exercise of prosecutorial discretion to persons in removal proceedings in accordance with ICE’s removal priorities.  While there were was vague language regarding family relationships in ICE’s guidance, and while assurances were made that same-sex couples would be recognized in the guidance, no official word came from the Department or ICE in writing.  Advocates for LGBT immigration issues received assurances that the vague language did not require a couple to be married, nor even of opposite sex, when ICE was evaluating a case for prosecutorial discretion.  However, in practice application of the Morton Prosecutorial Discretion Memos was inconsistent throughout the country.  While leadership in Washington seemed to envision inclusion of all couples, regardless of marital status or sexual orientation, the boots on the ground seemed to be looking more for a marriage certificate.

 

On Thursday, September 27, 2012, Secretary Napolitano answered a letter from some Members of Congress requesting clarification on the issue.  Specifically, in her response, Secretary Napolitano clarified that the term “familial relationships” specifically would include long-term, same-sex partners.  She also specified that she has directed ICE to disseminate written guidance to the field clarifying the issue.  Advocates expect ICE guidance in the very near future on this issue.

 

Given the DOMA litigation, the pending Uniting American Families Act which would recognize same-sex relationships for immigration purposes, and the wave of marriage recognition across the country, this forthcoming guidance from ICE at the Secretary’s direction is a large advance for the LGBT community in immigration issues.

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Sponsoring an Immigrant

A Swedish citizen currently living in the US with her spouse's VISA (L1 and L2) asked about when his assignment is over. She wanted to know if there was any chance someone can sponsor her to stay in the US. They had financial resources, but also wanted to work here. Additionally, she requested to know if there was any risk for the sponsor?

Our response at Joseph Law Firm Denver was that under U.S. immigration law, there is not avenue to remain in the United States based on generic sponsorship. It may be possible for you to remain in the United States, but you would have to obtain a new employer sponsor or start a business and self-petition for an investor or treaty trader visa (E-1 or E-2). You should consult with an immigration attorney to discuss these options and the best avenue for you.

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New Proposed Rule Would Decrease Time Abroad for Many Consular Processing Cases

On Friday, Alejandro Mayorkas, the director of United States Citizenship and Immigration Services, announced a proposed rule which could help thousands of families seeking to legalize the immigration status of one of their members.

Currently, if a person present in the United States entered the country without being inspected, she must leave the country in order to gain lawful permanent resident status based on the petition of a spouse or other immediate family member. As soon as they leave the United States, their previous unlawful presence triggers a 3 or 10 year bar to their return. So when they are abroad in their home country, they must file for and obtain a waiver of their unlawful presence bars before they can return. In order to obtain the waiver, they must establish that their absence from the United States is causing "extreme hardship" to their qualifying family members in the United States who are U.S. citizens or lawful permanent residents.

The problem is that the adjudication process for these waivers can sometimes take a year or longer. So at a minimum, the families face a long period of separation while trying to become legal. And of course, there is no guarantee that the waiver will be approved after the long adjudication.

If implemented, the new proposed process would allow those seeking to legalize their status through consular processing to submit their waiver applications for pre-approval before leaving the United States. While such applicants would still have to leave the United States to receive their status, the new process would have the potential to drastically decrease the time that they are abroad away from their citizen spouses and families.

As of now, the new rule is just a proposal and has not been implemented. There is no date certain for implementation. Also, it appears that the new pre-approval process would only be available for the waiver of unlawful presence bars. Those who also need waivers for bars triggered by criminal convictions or past fraud would have to continue to follow the old process where their waivers are submitted and adjudicated abroad.

Click Here to see the New York Times Editorial

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Decline in Unauthorized Aliens Residing in US

Whether it is the economy or an increase in worksite enforcement, the number of unauthorized aliens in the United States has declined since 2008. According to the Congressional Research Service report published September 22, 2001, an estimated 10-11 million unauthorized aliens lived in the U.S. as of 2010, compared to over 12 million in 2007. The report surveyed the U.S. Census Bureau's Current Population Surveys (CPS) published since 1986, and the Department of Homeland Security (DHS) Office of Immigration Statistics (OIS) reports based on the U.S. Census Bureau's American Community Survey (ACS) since 2000.

The report analyzed data collected not only on the number of unauthorized aliens in the U.S., but also countries of origin, residence in the United States, and year of arrival. The majority of unauthorized aliens residing in the U.S. as of 2010, approximately 30% of the total population, entered between 2000 and 2004. Only 9% of the current unauthorized alien population entered the U.S. between 2005 and 2009 according to a 2010 CPS report. Unauthorized aliens migrating from Mexico have declined since 1986, from 69% to 57% in 2010, while aliens originating from Asia have increased by 6%. The greatest number of unauthorized aliens continue to reside in California and Texas. According to the report, Colorado is not even in the top ten states "with unauthorized resident aliens" with a 2010 headcount between 140,000 to 325,000.

Contributing factors to the rise and fall of the unauthorized alien population in the U.S. since 1986 included economics, legislation, and enforcement. Some analysts attributed the rise of unauthorized aliens to "lax enforcement of employer sanctions," introduced in 1986 (Immigration Reform and Control Act (IRCA) of 1986). These analysts point to the decrease in unauthorized aliens since work site enforcement increased in 2007-2008. However, the decrease in population since 2007 may also be attributed to the 2008 housing downturn and the subsequent recession.

In addition, the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA) "may have inadvertently increased the population of unauthorized resident aliens." Among other penalties, the act introduced the three and ten year bars to admission for aliens unlawfully present in the US for 180 days or more. These provisions "coupled with incrased resources for border enforcement" in the wak of the 911 terrorist attacks, according to the report, have created a "caging effect" that has "stymied what had been a rather fluid movement of migratory workers along the southern border." The result of IIRIRA "raised the stakes" and "created an incentive for those who succeed in entering the United States to stay."

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DEPARTMENT OF STATE: LIMITED AVAILABILITY FOR VISAS TO THOSE BORN IN INDIA OR CHINA

Mr. Charles Oppenheim of the Department of State Visa Office has advised AILA of the following predictions for the movement of priority dates for the remainder of FY2009 and future years. He estimates that all 140,000 employment-based immigrant visa numbers will be used this fiscal year (October 1, 2008 through September 30, 2009). EB1 and EB2 Visas for China and India remain in high demand, while EB3 visas for China and India will be unavailable for the rest of the year.

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ATTORNEY GENERAL DOES AWAY WITH COMPEAN ORDER

The Attorney General Eric Holder vacated the order issued in Matter of Compean by Attorney General Mukasey, and announced his intention to initiate a new rulemaking proceeding for regulations to govern claims of ineffective assistance of counsel in removal proceedings. The order in Matter of Compean limited non-citizen's ability to make claims of ineffective assistance of counsel in immigration proceedings.

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THE CAP HAS NOT BEEN REACHED! USCIS CONTINUES TO ACCEPT H-1B PETITIONS

There are still a number of H1-B Visas available, but you will need to file now!
Contact Joseph Law Firm, P.C. at 303-297-9171 or at www.immigrationissues.com to inquire about the available H1-B visas.

USCIS announced it continues to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. master's degree or higher educational exemption cap.

USCIS has received approximately 44,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

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