U.S. Supreme Court rules on DOMA

Contributed by Bryon Large, Senior Attorney.

Today the United States Supreme Court rejected Section 3 of the Defense of Marriage Act which limited the federal recognition of marriage to one man and one woman.  This will have a huge impact on dual-national same-sex couples and immigration benefits.  Presumably, those couples in a same-sex marriage can petition for immigration benefits based on that marriage.  Previously, immigration benefits for long-term same-sex couples were extraordinarily limited.  A wide range of federal benefits, including immigration benefits, are now available to the LGBT community that were previously off limits.

Under today's ruling, same-sex couples will be entitled to equal treatment under federal law with regard to immigration benefits.  Lesbian and gay couples may now petition for their same-sex spouses.

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
• 

Comprehensive Immigration Reform Likely to Pass in Senate, Fate in House Unclear

Contributed by Aaron Hall, Senior Attorney
 
After an amendment to the immigration reform bill which adds over 40 billion dollars in new border security spending, including a near-doubling of border security agents, new drones, hundreds of miles of fencing, and a 1,500 mile long alligator moat (OK, there’s no alligator moat), the Senate seems poised to pass the proposed reform with 60 to 70 votes.  While the thousands of new agents, fencing, and drones threaten to turn border communities into militarized zones, it is apparently the price that needed to be paid to get the bill through the Senate with strong bipartisan support.

Assuming passage by the Senate, the attention would then turn to the House of Representatives, where some are predicting that the bill is “dead on arrival.”  Whether the bill passes the House of Representatives will likely hinge on whether Speaker of the House John Boehner decides to allow a vote on the bill despite a majority of House Republicans being opposed to the bill.  Most experts think that it will be late summer or fall before we know for sure whether comprehensive immigration reform can pass both houses and make it to the president’s desk.

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
• 

Immigration Reform Update: “Gang of 8” Has Substantive Agreement

Contributed by Aaron Hall, Senior Attorney


Progress and momentum toward Comprehensive Immigration Reform in 2013 continues to build.  On March 31, senators from the “Gang of 8” announced that they had reached substantive agreement on the reform.  While the language of the bill has yet to be drafted, Senator Lindsey Graham (R-SC) announced that he expects the parameters of the plan to be announced next week.  One of the biggest breakthroughs came last week when business leaders and labor leaders agreed on a proposal for a W-visa for low-skilled workers.  The W-visa would be a guest worker program which has long been a point of contention in immigration reform proposals.  Senator Chuck Schumer (D-NY) told ABC News that he believed that the agreement between business and labor on the parameters of the W-visa program was the last major substantive hurdle for negotiations.  

While there will be many specifics to work out,  as the language of the bill is drafted, it appears that there will be a bi-partisan piece of legislation coming out of the "Gang of 8" for consideration by the rest of Congress.  If that compromise legislation is acceptable to enough representatives and senators, the dream of Comprehensive Immigration Reform may become a reality this year.  

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
• 

March Madness Immigration Style

Contributed by Amber Blasingame, Associate Attorney

An immigration attorney knows the economy is improving based on the number of H-1B petitions she files at the end of March. Both the private and public sectors speculate every year on how much earlier the H-1B cap for the next fiscal year will be reached. This year, based on surveys, the government predicts that the H-1B cap may be reached as early as April 5, 2013, if not on April 1, 2013. This weekend, employers and immigration attorneys nationwide were waking from nightmares of courier packages going astray, while rubbing well-worn rabbits’ feet and looking for four leaf clovers, awaiting news on the 2014 Fiscal Year H-1B Cap. While employers who waited too late to jump in the game this week, wait to see if they may still be a contender for this year or will have to consider an alternative hiring plan until H-1B visas become available again for fiscal year 2014.

To qualify for H-1B temporary worker status, the position the employer offers must be complex enough to require at a minimum a four year post-secondary degree or advanced degree to accomplish the duties and responsibilities of the position successfully. The beneficiary of the H-1B status must provide evidence that she possesses not only at a minimum a four year Bachelor’s degree, but that she also qualifies for the position offered. Employers petition for H-1B status to hire foreign nationals to fill positions from entry level professionals to vice president.

Under the current laws, the government caps issuance of H-1B visas at 65,000 per fiscal year. About 6,800 of those numbers are carved out per Free Trade Agreements between the United States and Chile and Singapore. An additional exemption of 20,000 H-1B visas has been added to retain graduates from United States universities with advanced degrees. The 65,000 H-1B cap, while temporarily increased in fiscal years, 2001, 2002, and 2003, has not changed since the 1990s. However, the United States economy and workforce needs have changed dramatically since the 1990s. The current H-1B cap is not enough to meet the demands of our current growing economy.

The government fiscal year begins October 1, which means the earliest date that a foreign national may work in H-1B status for the upcoming fiscal year is October 1. An employer may petition for H-1B status on behalf of a foreign national within six months of date of need. So the earliest an employer may file for an October 1, start date is April 1. USCIS will only begin accepting H-1B petitions for the next fiscal year on April 1. If an employer jumps the gun and sends a petition for delivery before April 1, USCIS will reject and return the petition to the employer. The employer may not know about the rejection until May. USCIS will also reject an H-1B petition that lacks a certified Labor Condition Application from the US Department of Labor. USDOL at a minimum takes seven business days to certify a Labor Condition Application, and that is only after the employer has verified his Federal Employer Insurance Number with the Foreign Labor Certification division of the US Department of Labor. Therefore, in March, immigration law firms and employers across the country calculate, anticipate, and plan to have H-1B petitions ready to go out the door on the last business day or courier pick-up day immediately preceding April 1; this year, for most petitioners, that date fell on Friday, March 29, 2013.

When the H-1B cap is reached has varied over the years along with the United States economy. Last year the cap for the 2013 fiscal year was reached in June 2012. For fiscal year 2012, the cap was reached in November 2011. Since 2008, the date when the H-1B cap is reached has been steadily coming earlier and earlier, just as our economy has steadily improved.

In reality, when employers decide to petition for an H-1B worker depends greatly on the demand in the labor market. When the economy recesses and the labor market is flooded with available workers, employers tend not to rely on a foreign labor force as much. For the 2010 fiscal year, immediately following the economy bust in Fall 2008, the H-1B cap was not reached until February 2010, only one month shy of the first date employers could file for the 2011 fiscal year.

In April 2008, just before the economy went bust in September 2008, the US Citizenship and Immigration Services received a record number of H-1B petitions. On April 1, 2008, for the 2009 fiscal year cap, USCIS received over 150,000 petitions. The phenomenon backed up FedEx overnight service so much that the courier could not generate individual receipts. FedEx could only guarantee that if the package was addressed to the Vermont Service Center, it was delivered.

This year predictions and bets have been announced that we may experience another 2008 lottery. In most years, a petitioner can rest assured that if his H-1B petition was accepted for receipt on April 1, the petition will be adjudicated. In 2008, because more than enough petitions were accepted for receipt on April 1, USCIS stopped accepting petitions after April 1, and the petitions received were placed into a lottery pool. Petitioners were not informed whether their petition was accepted for adjudication or rejected until the beginning of May 2008.

Proposed Comprehensive Immigration Reform addresses business immigration as well as the growing undocumented population in this country. Immigration reform is more than a path to citizenship for undocumented immigrants; CIR is much needed reform to address our broken immigration system and our economy. Our economy, according to most experts, has not yet improved to pre-2008 levels, and we are already facing a possible H-1B petition lottery this year. Not addressing the restrictive cap for one of the most popular employment based visas could severely limit our economic growth and standing on the international market in the future.

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
• 

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:

• 
• 
• 
• 
• 
• 
• 
• 
• 

Overwhelming Public Support for Comprehensive Immigration Reform

Contributed by Aaron Hall, Senior Attorney

The latest poll by Gallup finds the American public strongly supportive of the immigration reform being discussed by Congress and the White House. Included in the results are the following:

• 72% support allowing those here illegally to become residents or citizens if they meet certain requirements;
• 85% support requiring employers to verify new hires are legally in U.S.;
• 71% support increasing the number of visas available for those with advanced degrees in technology and science;
• 68% support increased government spending on security measures and enforcement at U.S. borders.

The CNN Article on this poll also points out that a majority of Republicans polled support these measures, including 59% of Republicans favoring the chance for those here illegally to become legal residents or citizens.

With broad-based support in the public and a sense of urgency from Congress or the White House, the atmosphere appears to be ripe for Comprehensive Immigration Reform to succeed this year where previous attempts had failed.

For further reading:
The CNN article on public support for Comprehensive Immigration Reform
The Gallup Poll

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
• 

Securing our Borders Before Status for Undocumented Immigrants: Problem Solved?

Contributed by Kim Tremblay, Associate Attorney

Last week, a group of senators from both parties announced a plan for comprehensive immigration reform.  The tentative plan states that the United States’ borders will have to be secured before undocumented immigrants are permitted to pursue permanent residency and embark on a path to citizenship.

This week, Customs and Border Protection (“CBP”) published its statistics for fiscal year 2012.  The highlights include that attempted illegal border crossings have been dramatically reduced in the last few years.  In 2012, CBP thwarted 365,000 illegal border crossings.  This figure represents a 78% decrease since 2000 and a 50% decrease since 2008.  Of course, these figures represent only the number of people who were caught crossing the border, not the actual number of people who illegally crossed into the country.  Individuals may be using more successful strategies to avoid detection.

However, a significant force behind a likely overall decrease in crossings is probably the increase in resources devoted to border security.  Indeed “Under this administration, DHS has dedicated historic levels of personnel, technology, and resources to the Southwest border. CBP has more than doubled the size of the U.S. Border Patrol since 2004.”[1]  CBP’s budget last years was $11.7 billion, representing a 64% increase since 2006.[2]  

How much more secure should our borders be?  The dramatic decrease in illegal crossings illustrates that it is already difficult to enter the country illegally and that our borders are secure enough.  Americans need to think seriously about whether expending more tax dollars on border security will be worth the return on the investment at this point.    

  

For more information: 

See “Bipartisan Framework for Comprehensive Immigration Reform”

Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake

CBP’s Fiscal Year in Review: http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/02012013_3.xml

AILA, Border Security: Moving Beyond Past Benchmarks (1/30/13)

---

[1] CBP’s Fiscal Year in Review: http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/02012013_3.xml.

[2] AILA, Border Security: Moving Beyond Past Benchmarks, 1 (1/30/13).

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
• 

Comprehensive Immigration Reform and a Date with the Tax Man?

Contributed by Aaron Hall, Senior Attorney

A bipartisan group of Senators and the White House have each come out to give the principles for comprehensive immigration reform.  Advocates for reform hope that a bill is presented to Congress in the coming months.

 One of the common principles between the plans is the idea that undocumented immigrants will have to pay back taxes before getting legalized status.  A Politico story questions how back taxes from the undocumented would be calculated and collected and whether the IRS would even want to use its resources to try to collect such taxes.

 

[T]he reality is that between 50 and 70 percent of illegal immigrants who work already pay taxes.  But even if the IRS was able to track down income history for the 30-50 percent of illegal immigrants that don’t pay taxes, Treasury would likely spend more processing the back taxes than it brought in, says Steven Camarota, the director of research at the Center for Immigration Studies, a group that supports limiting immigration.

 

Many of those already paying taxes do so using authentic ITIN numbers provided to people by the IRS regardless of immigration status.  For those who have not been paying taxes, it is unclear whether a reform would attempt to assess an exact amount owed for past years of work or whether it would use a flat amount.  Regardless about how much the back taxes would actually bring in, the provision is politically popular and likely to be in the final bill in one form or another.

 

Further reading:

Senate principles for Immigration Reform

President’s principles for Immigration Reform

Politico Story on back taxes.

Bookmark this post with:

• 
• 
• 
• 
• 
• 
• 
• 
•