Just One More Reason to Support Comprehensive Immigration Reform

Contributed by Kim Tremblay, Associate Attorney

Last month, many of us at the Joseph Law Firm had the chance to go see Just Like Us, the play based on Helen Thorpe’s book about four Latina teenagers, two of them documented, two of them not, and how their friendship and lives have been affected by this status.  The play is also set in the wider context of the struggle for immigrant rights and immigration reform in Colorado and the United States.   Fellow attorney Jennaweh Leyba and I had the added privilege of attending a dinner after the play during which the cast and crew discussed the creative process of the play and their personal experiences with immigration.  The play was fun and entertaining while being thought provoking and accurate about immigration issues and their complexity, a fact very much appreciated by the immigration attorneys in attendance.  

One of the main themes in the play is the struggles of young immigrants who came to the United States as children.  For example, the two main undocumented characters had to surmount many obstacles to attend college.  Despite their exceptional performance in school, they were not able to obtain federal financial aid or school sponsored scholarships because of their status.  Thankfully, the girls were some of the lucky few able to obtain help from private donors to finance their education.  Although this play had a happy ending, there are thousands of students across the country who have potentially bright futures obscured by their status.  Moreover, the characters still faced the struggle of finding work after graduation despite their status.  The Deferred Action for Childhood Arrivals (“DACA”) program is but a temporary solution for them.  I hope that the viewers of the play will not only think about the complexities of immigration, but be inspired to take action and pressure members of Congress to pass comprehensive immigration reform as well.   After the government shutdown was resolved last month, President Obama stated that he was renewing efforts to pass immigration reform; members of the House of Representatives are currently working on a bill regarding immigration, which will have to be reconciled with the Senate version passed earlier this summer.  Now may be the time to speak up!

It is not too late to see the play, it runs until November 4 at the State Theater:

http://www.denvercenter.org/buy-tickets/shows/just-like-us/about.aspx

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Hardship Issues for the GLBT Immigrant Spouse in Removal Proceedings

Contributed by Bryon Large, Senior Attorney

 

The concept of hardship under United States immigration law is considered at varying levels, depending on the benefit an immigrant is seeking.  In removal (deportation) proceedings, relief from removal can be sought in some circumstances when various levels of hardship can be demonstrated to certain qualifying relatives, such as cancellation of removal.  The same is true when an immigrant is seeking a waiver of some ground of inadmissibility to the United States, through an I-601 waiver, for example.

Quite frequently, immigrants seek relief in the form of Cancellation of Removal.  To be successful, one must demonstrate that they have been present in the United States for at least ten years, been a person of good moral character during that time, have not committed a crime which would disqualify them from relief, and they must demonstrate that their resident or citizen spouse, parent, or child would suffer an “exceptional and extremely unusual hardship” if they were to be deported.

Other forms of relief from removal require immigrants to file for inadmissibility waivers in conjunction with their residency applications, such as for unlawful presence, fraud, or criminal inadmissibility issues.  Those intending immigrants must file for a waiver of that ground of inadmissibility and, to do so, must demonstrate that their United States citizen or permanent resident spouse or parent would suffer an “extreme hardship” if the admission to the United States is refused.

Both “exceptional and extremely unusual hardship” and “extreme hardship” are legal terms found in the Immigration and Nationality Act.  Both require a demonstration of different levels of hardship, and both require something more than a normal type of hardship one would suffer in similar circumstances.  “Extreme hardship” is a much lower standard than “exceptional and extremely unusual hardship,” which is contemplated to be a very difficult standard to reach.

GLBT immigrant spouses may have an easier time reaching this standard for a variety of reasons.  In general, the Immigration Judge or Officer will want to understand what type of hardship the U.S. citizen or permanent resident spouse will suffer if the immigrant spouse is not admitted to the United States or is deported.  If the couple is going to live apart, what type of hardship will the distance create?  If the couple is going to move to the foreign national spouse’s home country, what type of hardship will this create?  The discussion on hardship goes much further than an emotional or economical argument in many cases. 

For same-sex couples, or for couples where one of the spouses is transgender, there are many issues not seen in cases presented by their opposite-sex couple counterparts.  First, legal relationship recognition can be a challenge, depending on the home country of the foreign national spouse.  In those countries where the relationship wouldn’t be recognized legally, it may be impossible for the U.S. citizen spouse to acquire lawful immigration status in that country.  Other difficulties associated with the lack of lawful recognition may also exist, such as inheritance rights, visitation rights when sick, etc.  Documenting these issues is important and highly relevant to the hardship inquiry in any legal review of hardship.

More important, however, is the case where it is culturally taboo and/or unsafe to be an “out” same-sex couple.  Living in a home together and, perhaps having a family, will usually create a highly visible relationship exposing both the foreign national and the U.S. citizen to harassment, discrimination, and physical harm.  Such treatment by government or non-government actors in the foreign country can be documented by news articles, State Department Country Conditions Reports, and other local sources.  This potential hardship to the U.S. citizen is a much lower standard that we look for when applying for asylum-related benefits based on persecution, and the question always focuses on the U.S. citizen or lawful permanent resident spouse.  Potential for harassment, discrimination, and physical harm based on sexual orientation and on the relationship itself can create varying levels of hardship that would be important for the Immigration Judge or Officer to review in looking at hardship.

Finally, if the U.S. citizen or lawful permanent resident spouse is HIV Positive, this can create unique hardship factors, as well.  The couple will want to spend time thinking about the availability of treatment (medical professionals and medication) in the foreign country, the ability to travel, the U.S. citizen or lawful permanent resident’s current health conditions and amount of treatment required, and the stigma of HIV status being disclosed in the foreign country.  In many developing nations, access to healthcare can be inconsistent, difficult, and often costly.  This can create greater burdens on the U.S. citizen or lawful permanent resident, particularly considering the overall high quality of HIV treatment available in the United States.  If the U.S. citizen or lawful permanent resident spouse is in declining health, travel may become difficult, as well.  And there is an increased threat of visibility of the relationship if one is undergoing HIV treatment in the foreign country.  If the social stigma of HIV status is great, this may also lead to difficulty in finding work in the foreign country, which can become part of the hardship factors weighed by the government.

Naturally, these issues are case-specific, and reviewing which country the foreign national spouse is from is equally important.  GLBT persons will not find the same sorts of hardship in a place like France as they might in a place like Jamaica.  Careful review of that country’s laws, tradition, and culture, as well as careful review of the facts of the case come into play in determining each case’s strategy.  Identifying as GLBT can create unique hardship issues that are not necessarily seen in opposite-sex relationships.  It is important to spend time weighing those issues and determining how to present those factors in a light favorable to the hardship standard sought.

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Please Please Don’t Plead (Before You Talk to an Immigration Lawyer)

Contributed by Aaron Hall, Senior Attorney

Our criminal justice system is set up to encourage the plea bargain process.  Those charged with crimes are often offered deals to lesser charges and promises that the prosecutor will recommend little or no jail time.  Facing the uncertainty of a trial and a possible conviction with harsher penalties, many people charged with crimes choose to take the plea offer.  Often, they take the plea offer very quickly because it seems to be the fastest way to get out of jail and get back to their families.

Unfortunately, this plea process often has disastrous consequences for noncitizens.  Criminal convictions can cause a noncitizen to be deportable, inadmissible, or ineligible for immigration benefits. 

One of the problems is that many of the players in the criminal justice system are unaware that the definition of the word conviction is very different for purposes of immigration than it is for many states.  For example, in Colorado, the state courts will often sentence a defendant to a deferred judgment and sentence.  The conviction is then withdrawn if the defendant complies with the terms of the deferred judgment and sentence for a period of time.  After that, the conviction is no longer on the defendant’s record in the eyes of the state of Colorado.  Under the definition of the word “conviction” for immigration, however, the conviction will always stay on the defendant’s record, even if he fully complies with the deferred judgment and sentence.

There is no easy way to know whether a certain type of conviction will affect one’s immigration status or potential for future relief.  In some cases, seemingly small misdemeanors can lead directly to a person’s deportation.  Whether convictions will cause immigration consequences for noncitizens will depend on the elements of the crime, the person’s criminal history, the person’s immigration history, and sometimes the circumstances surrounding the crime.  For noncitizens that get charged with any crime, it is vitally important that you or your criminal defense attorney consult with an immigration attorney with expertise in the immigration consequences of criminal convictions.  Pleading guilty to what sounds like a good deal may seem easier and more convenient at the time, but it can end up being the mistake of a lifetime.

If you want to consult with an attorney at our office about the immigration consequences of criminal charges, call us at 303-297-9171 to set up a consultation.

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Managing Previous Opposite-Sex Relationships in Current Same-Sex Marriages

Contributed by Bryon Large, Senior Attorney

A recurring theme amongst immigration practitioners working on same-sex couple cases is how to handle previous heterosexual marriages and relationships.  The concern lies with the allegation of a previous fraudulent straight marriage, particularly where immigration benefits are involved, or whether the current marriage is a sham, seeking marriage solely for an immigration benefit.  Questions are likely to arise in current paperwork processing when one or both parties previously had opposite-sex relationships.  Children may even have been born into that relationship.

The federal government is no longer limited to a definition of marriage that excludes same-sex couples.  In short, marriage is marriage, so long as it is celebrated in a jurisdiction that recognizes the marriage.  The use of the term “gay marriage” is counter-intuitive to the long-fought battle of the GLBT community, and, legally speaking, the federal government should not be differentiating between marriages based on the gender of the spouses.  Possibly, comedian Liz Feldman said it best when she said, “It’s very dear to me, the issue of gay marriage.  Or, as I like to call it:  ‘marriage.’  You know, because I had lunch this afternoon, not gay lunch.  I parked my car; I didn’t gay park it.”  The agency has repeatedly advised that it will treat all marriages the same.  We, as practitioners and applicants, should do the same. 

Previous marriages, depending on the gender of the spouses, should be treated like any other previous marriage would be treated for any opposite-sex couple.  A mere suspicion of obtaining immigration benefits based on a sham marriage should be treated as they would in any other situation.  The government should look to the bona fides of each marriage and not spend time hashing out the sexual orientation of all of the parties involved.  Likewise, practitioners and applicants should be prepared to discuss the bona fides of each marriage, and not have to worry about hashing out the sexual orientation of each of the parties.  While seemingly idealistic, practitioners and applicants alike should return the government’s focus on the real issue – whether the marriage is bona fide.

People marry for a variety of reasons.  It is not uncommon for a gay or lesbian to have previously been in an opposite-sex relationship or marriage, and, possibly have children born of that marriage.  Many people are concerned that a previous relationship based on a different sexual orientation than the current relationship might give rise to a fraud investigation with USCIS.  Petitioners and applicants should be honest and forthright with immigration authorities always, and explain, as necessary and appropriate, any questions that the adjudicator might have.  Applicants and petitioners are advised to not conceal previous opposite-sex relationships, or any other fact that is relevant to the benefits sought.  Oftentimes, explanations can be simply the person’s life story and coming out story, where they tried to survive in opposite-sex relationships due to personal beliefs, religious beliefs, family pressure, or other reasons.

Immigration authorities are to look to the validity of the marriage and not the viability of the marriage.  Alternatively stated, immigration officers want to see that this is a “real” marriage from the beginning and not a sham marriage for the purposes of gaining an immigration benefit by fraud or deceit.  Immigration authorities are not to look at whether this is a marriage that is viable, or able to remain intact for a period of time.  Bad marriages or marriages that don’t work out are no less bona fide or real than marriages that last until death.  For those reasons, immigration officers will look to the intent of the parties and look at relevant evidence to determine whether it is a real marriage.

Also relevant is the fact that some people, although they identify as gay or lesbian, are legitimately bisexual, even if they are not comfortable expressing it or self-identifying in that manner.  Again, the focus here is on the marriage itself, not on the gender and sexual orientation of the parties to that marriage. 

Essentially, whether a previous marriage or relationship was opposite-sex or same-sex, the inquiry should be to the marriage or relationship itself, not to the gender or sexual orientation of the makeup of that relationship.  Applicants and adjudicators, alike, should treat a marriage as a marriage.  Only by removing gender and sexual orientation from the equation will we achieve true marriage equality.

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Federal Government Shutdown

Contributed by Melanie Corrin, Senior Attorney

Immigration Law and Services are Federal in nature, and therefore the current government shut-down may have an effect on pending/potential immigration cases.  As of midnight last night, there are a number of things you need to know:

Department of Labor:

The Office of Foreign Labor Certification (OFLC) is not accepting or processing any applications or related materials (such as audit responses), it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC's web site, including the iCERT Visa Portal System and the PERM system, has become static and is unable to process any requests or allow authorized users to access their online accounts.

DOL's Office of Administrative Law Judges will be unable to perform any case-related activities, including conducting hearings. Hearings that have been previously scheduled will therefore be cancelled prior to the date of the hearing, and they will not be rescheduled for hearing until an appropriations bill or continuing resolution takes effect.

Department of State:

The DOS will continue as many normal operations as possible; operating status and available funding will need to be monitored continuously and closely, and planning for a lapse in appropriations must be continued.  This will be updated as information comes in.  Consular processing is not currently affected.

Executive Office for Immigration Review:

Court functions that support the detained caseload will continue, but other functions are suspended.

The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds.

Immigration & Customs Enforcement:

ICE detention and enforcement operations shall continue.  ICE chief counsel trail attorneys will still work on the detained docket only during a shutdown.  The ICE Community and Detainee Helpline will remain operational.

United States Citizenship & Immigration Services:

All USCIS offices worldwide are open and individuals should report to interviews and appointments as scheduled. 

E-Verify is currently unavailable due to a government shutdown.

Please contact Joseph Law Firm, P.C. for more information on how your case is impacted. 

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E-Verify Unavailable During Government Shutdown

Contributed by Amber Blasingame, Associate Attorney

Due to the government shutdown, US Citizenship and Immigration Services (USCIS)announced that E-Verify is unavailable as of October 1, 2013, as are customer support and related services.  USCIS has suspended certain rules and policies pertaining to entry and verification for employers during the emergency furlough as well as both employer and employee support services.  Once the government reopens, USCIS will provide guidance on accessing, verifying or reverifying, and reconfirming employment eligibility for employees that arose during the shutdown.

While E-Verify is inaccessible, employers are still responsible for executing and maintaining the I-9 Employment Eligibility Verification Form for all hires and current and former employees.  USCIS has suspended the three (3) day entry rule for employee employment eligibility verification using E-Verify only during the government shutdown.  If an employee is hired or was hired within three days of the government shutdown, the employer cannot enter the necessary information into E-Verify, but “must still complete the Form I-9 no later than the third business day after an employee starts work for pay.”  Additional guidance will be provided on entering the information later into E-Verify once the government reopens.

Specifically, the following E-Verify services will be inaccessible during the government shutdown:

 

      ·         Enroll any company in E-Verify

·         Verify employment eligibility

·         View or take action on any case

·         Add, delete or edit any User ID

·         Reset passwords

·         Edit your company information

·         Terminate an account

·         Run reports

·         View ‘Essential Resources.’(However, information, manuals, and resources are still available on-line)

Neither employers nor employees will be able to “resolve Tentative Nonconfirmations [(TNC)]” while the government is on emergency furlough.  USCIS has extended the period in which employer’s must resolve TNCs, and reports that “[d]ays the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS.”  Federal contractors who must comply with federal contractor rules are encouraged to contact their “contracting officer to inquire about extending deadlines.”

USCIS has also suspended all support services relative to E-Verify for the duration of the shutdown.  USCIS will be unable to respond to queries during this time.  Employers may send email queries, but USCIS will be unable to respond to the emails until the government reopens.  Any webinars or training sessions scheduled during the shutdown are cancelled and rescheduling will be determined when the government reopens.  The E-Verify Self Check is also unavailable on-line.

 USCIS warns employers that even though E-Verify and support services are unavailable, “Employers may not take any adverse action against an employee.”  Please consult the E-Verify User Manual concerning “interim case statuses.”

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Mountain Businesses Need Professional Athletes

Contributed by Melanie Corrin, Senior Attorney

As Colorado ski areas gear up for the winter season, some staffing executives may be concerned over how to feel the gap of needed employees.  The population of Breckenridge, CO increases from 3,400 to 36,150 people during season! 

http://www.coloradoinfo.com/wintervacationplanner/breckenridge

With increase in population, comes the need of a town and a mountain to cater to its customers.  Finding workers to fill that need is often difficult, and oftentimes the ski industry looks to foreign nationals to come and work in the United States.  Unfortunately, the immigration regulations allowing for seasonal workers are restrictive and difficult to navigate.  Add to the difficulty that the Immigration & Nationality Act only allows a total of 66,000 seasonal workers nation-wide each year, and many of our local ski areas are looking for other options.

Some positions in the ski areas don’t necessarily require only a seasonal need, but also a particular athletic skill set.  Many professional athletes are looking for a place to train during the season, and also to be eligible for employment.  This is where a P-1 visa for Professional Athletes or an O-1 visa for internationally acclaimed athletes might help for businesses who have missed the 66,000 cap, or have a different need in employment.  Now may be the time to see what other avenues may be available for that employee you were looking for, season is just around the corner.    

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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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DACA: One Year Later

Contributed by Kim Tremblay, Associate Attorney

In June 2012, the government announced the new Deferred Action for Childhood Arrivals (“DACA”) program for young immigrants who came to the United States before their sixteenth birthdays.  USCIS began accepting applications August 15, 2012, just over a year ago.  Since then, over half a million applicants have applied for DACA.  Most cases have been approved:  seventy percent of applications that have not been rejected outright have been approved, one percent have been denied, and about twenty-five percent are still pending. The vast majority of applicants are from Mexico, have been in the country for over ten years, were less than ten years old when they arrived, and entered without inspection.

DACA recipients have started leading more regular lives and are able to engage in activities previously impossible due to their undocumented status.  They are able to work legally, enroll in college, and obtain a driver’s license in most states.  Some DACA recipients have considered applying for advance parole to be able to travel outside of the United States.  USCIS requires that the travel be for humanitarian, employment, or educational purposes.  The applicant must apply and be approved before traveling outside of the United States.  Traveling outside of the United States may have some potential immigration benefits for DACA recipients who entered without inspection.   However, there are risks associated with traveling abroad.  These risks vary according to immigration history, but are also inherent in trying to reenter the country with advance parole.  Any DACA recipient considering applying for advance parole should consult an immigration attorney to understand the benefits and risks associated with travel. 

What is next for individuals with DACA? Although the Senate has passed immigration reform legislation, the House of Representatives has not done so yet. Thus, there are no permanent options for those with DACA status at this time.  DACA recipients should be prepared to renew their DACA status before it expires and keep monitoring congressional legislative action on immigration reform. 

Source:

http://www.brookings.edu/research/reports/2013/08/14-daca-immigration-singer

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Provisional Waivers Mean Less Family Separation During Consular Processing

Contributed by Aaron Hall, Senior Attorney

A little more than five months after United States Citizenship and Immigration Services (USCIS) began accepting provisional unlawful presence waivers, the Department of State (DOS) released a cable on August 13, 2013 regarding the processing of cases with approved provisional waivers.  The cable confirms the expectation that the new provisional unlawful presence waiver process will drastically shorten the time U.S. citizens are separated from eligible immediate relatives while those family members are obtaining immigrant visas. 

 

To be eligible for a provisional unlawful presence waiver, an applicant must be:

 

(1) present in the U.S.,

(2) at least 17 years old,
(3) the beneficiary of an approved petition from an immediate relative who is a U.S. citizen, and
(4) only inadmissible to the United States for having unlawful presence in the country.

 

To get the provisional waiver approved, applicants have to prove that their absence from the U.S. will cause extreme hardship to their U.S. citizen qualifying relative.  As approvals for provisional waivers begin to roll in, we expect that these applicants will only have to spend a week or two outside of the United States.  Before the provisional waiver program, applicants who needed a waiver for unlawful presence would commonly spend around a year outside the United States, even if their case was approved relatively smoothly.

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Survey Says! US Needs More Immigrant Entrepreneurs

Contributed by Amber Blasingame, Associate Attorney

Over 74% of companies surveyed by the National Venture Capital Association (NVCA) in 2012 believe that “Current U.S. immigration laws for skilled professionals harm American competitiveness.” Opposition to expansion of work visas fears more employment based visas would lead to outsourcing, but “numerous companies say it is the current restrictions on H-1B visas that push jobs offshore.” Business is all about the bottom-line and projecting into the future to determine the value of present decisions. The current employment-based immigration system makes it difficult for many public or private venture-backed companies to plan for their future in the United States.

The NVCA recently issued a report updating data from 2006 on immigrant founded publically and privately traded companies. Immigrant founded companies account for 33% of initial public offerings (IPOs), up from 20 percent in 2006. According to NVCA, “If immigrant-founded venture-backed public companies were a country, then the value of its stock exchange [total market capitalization of $900 Billion as of June 2013] would rank 16th in the world, higher than the exchanges of Russia, South Africa, and Taiwan.” In 2012, “Immigrant-founded venture-backed public companies employ[ed] approximately 600,000 people worldwide, the majority in the United States,” including Intel, Google, Sanmina, and eBay. Similarly, 33% of privately traded companies were founded by immigrants. Among private companies surveyed, 41% of immigrant founders entered the United States in some form of employment based temporary work status, such as an H-1B status.

The limited number of H-1B visas cuts deep into the pockets of not only immigrant-founded, but US worker founded companies in the United States. Since the 1980s, only 65,000 H-1B visas are available annually, with a 20,000 visa exemption for foreign nationals who earn an advanced degree in the United States, and a carve out for Free Trade Agreement visas to Chile and Singapore. Multinational companies often base recruitment decisions on the availability of temporary worker visas in the United States. In the NVCA survey, “Fifty-seven percent of the companies replied that ‘projects had been delayed because of the lack of H-1B visas.’”

Even with the exemptions for advanced degrees earned in the US, foreign students still find it difficult to obtain temporary employment authorization after graduation. Sixty-five percent of Ph.D. graduates in electrical engineering in the United States were foreign born in 2012, while 50% of graduates with a Ph.D. in computer science were foreign born. One executive interviewed in the NVCA survey offered the following analogy: “Imagine if a Major League Baseball farm system trained prospects and when they were ready for the Major Leagues they gave those prospects away to another team in its own division.” Since 2008, the economy has been improving, and each year the H-1B cap has been hit sooner and sooner. This year we experienced yet another “lottery” on April 1, 2013. The result left many companies who had hired interns on Optional or Curriculum Practical Training in non-STEM industries with little or no options for continued employment; a waste of money and talent.

Fears that expansion of employment based immigration would lead to more outsourcing are misplaced. According to the companies surveyed by NVCA, many report that in the wake of current H-1B Cap announcements, many companies have turned to outsourcing if for no other reason than to retain the more talented employee. One company went as far as to create an office in India to retain talented employees and another decided to expand their facility in India instead of their New York or Philadelphia offices because it was not possible to import the necessary talent. According to economists, “An increase in foreign STEM (science, technology, engineering and math) STEM workers of 1 percent of total employment increased the wage of native college educated workers (both STEM and non-STEM) over the period of 1990-2000 by 4 to 6 percent.” Another economist reports that “Each additional 100 approved H-1B workers being associated with an additional 183 jobs among U.S. natives.”

The American Dream was built on small businesses. However, executives in the NVCA survey bemoaned the current costs of hiring foreign national workers in the United States, which prohibit smaller companies from competing in the global labor market. One executive noted that “The H-1B process is prohibitively costly and arduous for small companies.” And unfortunately, the proposed bills both in the Senate and the House of Representatives do little to improve the availability of H-1Bs to small companies. While both the House and Senate propose legislation to encourage foreign entrepreneurs and innovators to invest in and immigrate to the United States, the proposed legislation for H-1B visas overlooks the US Citizen entrepreneur who may depend on foreign innovation to grow and expand a new business in the United States. The US, business owner who proposes to introduce the next best thing from Outer Mongolia, may not be able to hire the talent necessary to train US workers. The NVCA proposes that four changes are necessary to reform the employment based immigration system: (1) a more reliable way to retain foreign-born entrepreneurs; (2) decrease the wait time for employment based green cards; (3) Increase the available annual quota of H-1B visas; and (4) reduction in the cost of sponsoring foreign-born workers.

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