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Atty Gen. Reports on Benefits to Same-Sex Married Couples

The Attorney General has just released a memorandum to the President detailing how the different federal agencies have implemented the Supreme Court decision in United States v. Windsor.

The Supreme Court in its Windsor ruling on June 26, 2013 found Section 3 of the Defense of Marriage Act (DOMA) unconstitutional under the equal protection clause of the Constitution. The law had restricted the interpretation of “marriage” and “spouse” to apply only to opposite-sex married couples prohibiting federal immigration authorities and other federal officials from recognizing same-sex marriage.

The Attorney General in his memo reports that the “the impact of the Windsor decision and the government-wide implementation efforts, cannot be overstated.” Among the benefits now enjoyed by same-sex married couples include being able to file joint tax returns with the Internal Revenue Service. Same-sex spouses of military service members can now receive the same benefits as opposite-sex spouses and same-sex spouses of federal employees are also eligible for health insurance and other benefits.

The Department of Homeland Security through the USCIS and the Department of State provide same-sex married couples the same immigration benefits as opposite-sex married couples. The USCIS looks to the law of the place where the marriage took place and not the place of domicile to determine the validity of the marriage.

A U.S. citizen or a lawful permanent resident who is in a same-sex marriage can now file an I-130 petition on behalf of his/her same-sex spouse.

On June 28, 2013, the first I-130 petition for an alien relative filed by a same-sex married couple was approved. Petitions or applications denied solely because of Section 3 of DOMA were reopened. USCIS undertook a concerted effort to identify and reopen I-130 petitions filed by U.S. citizens denied solely based on Section 3 of DOMA to allow their same-sex spouses to adjust their immigration status in the U.S.

A same-sex spouse is eligible as derivative beneficiary of the principal beneficiary who has been granted family-sponsored or employment-based immigrant visa, refugee status or asylum.

Stepchildren resulting from same-sex marriages may be sponsored by the U.S. citizen or lawful permanent resident parent. They are also eligible for derivative status of family-based preference petitions, employment-based immigrant petitions and the diversity visa. However, just like stepchildren of opposite-sex married couples, in order to qualify for the benefit, the marriage must have taken place before the child turned 18.

Moreover, where eligibility for discretionary waivers of certain inadmissibility grounds is conditioned on marriage or status as spouse, same-sex couples will be treated in exactly the same manner as opposite-sex couples.

Just like the opposite-sex spouse, the residency requirement for naturalization for the same-sex spouse of a U.S. citizen is three years. The same-sex spouse must also be living in marital union with the U.S. citizen spouse three years immediately preceding the N-400 application in order to be eligible.

Also, U.S. embassies and consulates abroad are adjudicating visa applications that are based on same-sex marriages in the same way as applications based on opposite-sex marriages.

U.S. citizens who are engaged to a foreign national of the same-sex may petition their fiancé(e) for a K visa. Same-sex spouses and stepchildren may also accompany the principal applicant who is coming to the U.S. to work or to study. Those accompanying students on F-1 or M-1 visas will need to obtain I-201A before applying. Spouses of J-1 exchange visitors will need to obtain an approved DS-2019.

What You Need to Know Before Renewing DACA

Young immigrants whose two-year deferred action under President Obama’s Deferred Action for Childhood Arrivals (DACA) program is about to expire are reminded to submit their renewal applications. The USCIS recently released the process for renewal and urged the filing of renewal requests 120 days or 4 months before the date the grant of DACA expires.

If the initial grant of deferred action expires before the request for renewal is approved, unlawful presence accrues and the applicant will not be allowed to work before receiving a new employment authorization document from the USCIS.

To be eligible for renewal, applicants must satisfy the eligibility requirements under the initial DACA guidelines. In addition, they must meet the following: (1) did not depart the U.S. on or after August 15, 2012 without advance parole; (2) continuously resided in the U.S. since submitting the most recent DACA request that was approved; and (3) have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

An applicant must complete and sign the new version of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, accompanied by Form I-765, Application for Employment Authorization, to renew work permit, and Form I-765WS Worksheet.

The application must be submitted with the $380 filing fee for the Form I-765 and $85 for biometrics fee, totaling $465 in filing fees. The check must be made payable to the U.S. Department of Homeland Security.

The USCIS has advised not to submit additional documents in the renewal application unless the applicant has new documents involving removal proceedings or criminal history which were not previously submitted in the approved DACA request. The USCIS may, however, request additional documents or statements.

To verify information in the renewal application, it may contact other government agencies, education institutions, employers or other entities. Knowingly and willingly providing materially false information is a felony.

Meanwhile, those who have not yet requested deferred action under the DACA program may still apply. First time applicants must meet the following eligibility requirements as set forth in the initial DACA guidelines: came to the U.S. before his 16th birthday and under 31 as of June 15, 2012; continuously resided in the U.S. since June 15, 2007 up to the present; was physically present in the U.S. on June 15, 2012 and at the time of making the request; and had no lawful status on June 15, 2012.

Also, they must be currently in school, graduated from high school or obtained general education development(GED) certificate, or honorably discharged from the Armed Forces; and not convicted of a felony offense, significant misdemeanor offense, or multiple misdemeanor offenses, and not otherwise a threat to national security or public safety.

Over 560,000 have been granted DACA status. Deferred action under the DACA program grants temporary reprieve from deportation and allows many to obtain driver’s license and even in-state tuition, in some cases. Although it authorizes the recipient to work for a certain period of time, it does not lead to lawful permanent residence nor provide lawful status.

Department of Homeland Security Secretary Jeh Johnson said that a child who crossed the border was not making an adult choice to violate the law and should be treated differently than adult law-breakers. He went on to say that, “By the renewal of DACA, we act in accord with our values and the code of this great Nation. But, the larger task of comprehensive immigration reform still lies ahead.”

Supreme Court Rules Against Aged-Out Beneficiaries

The U.S. Supreme Court ruled on June 9 that the automatic conversion provision under the Child Status Protection Act (CSPA) does not benefit most derivative beneficiaries of family based preference petitions. For thousands of immigrant families especially Filipinos hoping to be reunited with their aged-out children, this would mean more years, even decades, of waiting.

The case involved Rosalina Cuellar de Osorio who was a beneficiary of an F3 petition filed by her U.S. citizen mother. When the petition was filed in May 1998, her son was thirteen years old.

A visa became available to her in November 2005. During that time, her son had already aged out and could no longer apply for an immigrant visa with his mother as a derivative beneficiary. In 2006, de Osorio filed an F2B petition for her son and requested that her son retain his 1998 priority date.

Under the CSPA, the government delay in processing a visa petition is taken into account in calculating a child’s age for immigration purposes. If the adjusted age of the child is 21 years or older, the automatic conversion clause of the CSPA allows the petition to “automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

De Osorio contended that her son was entitled to benefit from the automatic conversion clause and retain his initial 1998 priority date since he was a derivative beneficiary of an F3 petition who aged out. The USCIS denied the request.

De Osorio appealed to the Ninth U.S. Circuit Court of Appeals which decided in her favor. The court ruled that the CSPA provides for the automatic conversion of the petition and priority date retention of derivative beneficiaries of all family based preference petitions. The Government appealed the decision to the U.S. Supreme Court.

The Government contended that the language of the CSPA law is ambiguous and the decision of the Board of Immigration Appeals (BIA) in the 2009 case of Matter of Wang should be given deference. In that case, the BIA ruled that the automatic conversion provision only applied to derivative beneficiaries of F2A petitions.

The U.S. Supreme Court, in a 5-4 vote, sided with the Government and reversed the decision of the Ninth U.S. Circuit Court of Appeals. There was no single majority opinion as the five justices who accepted the BIA’s narrow interpretation were split as to the legal rationale for the decision.

However, the majority agreed that there is an ambiguity in the law. Justice Kagan who wrote the plurality opinion explained that where the statute is unclear, the court must defer to the interpretation of the agency. She further stated that, “Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role. We decline that path, and defer to the Board.”

The ruling is a disheartening to immigrant advocates who contend that our immigration system should unite families, not separate them. Without doubt, this will have a harsh impact on countries with long waiting period caused by the problem on visa backlog. The waiting period differs depending on the category and the country of chargeability; it can be decades for some countries such as Mexico and the Philippines.

The F4 category for the Philippines, for example, has a cut-off date of November 15, 1990 as shown in the June 2014 visa bulletin. The Court’s ruling would mean that a derivative beneficiary from the Philippines who is waiting with his parents under the F4 category would not be credited for the more than two decades of waiting for a visa number. When a visa finally becomes available to his parents, he would have to go at the back of the visa line and start from the beginning under a new family-based preference category.

A bipartisan coalition of current and former U.S. Senators filed a legal brief with the Supreme Court explaining that the language of the CSPA is clear; the automatic conversion and priority date retention provision benefits all derivative beneficiaries of family based preference petitions. With the Supreme Court’s ruling that the CSPA law is ambiguous, it is now up to Congress to pass a law in a language that clearly and unambiguously expresses its intent.

Executive Action On Hold To Give House Immigration Bill A Chance

Hoping that the House of Representatives would act on immigration reform within the next two to three months, President Obama has placed his own efforts on hold including delaying the release of the results of the review on enforcement policies. Although Department of Homeland Secretary Jeh Johnson was instructed to continue with the review, the results would not be made public until Congress’ summer recess in August.

The White House remains optimistic that there is a narrow window for congressional action this summer and any unilateral action on its part may end any chance of a legislative compromise.

Immigrant-rights advocates are disappointed with the President’s decision to delay his efforts in easing deportation. While the President awaits House Republicans to act on immigration reform, an estimated 100,000 are likely to be deported this summer. It may be recalled that the President has been called “deporter-in-chief” with the number of deportations under his administration already exceeding 2 million.

Aside from stalling the review of enforcement policies, the White House also asked the Pentagon to put off taking any further steps on the new policy initiated by Defense Secretary Chuck Hagel allowing certain undocumented young immigrants to enlist in the military.

The new policy under the existing program, Military Accessions Vital to National Interest or MAVNI, would allow certain young immigrants who were granted deferred action under President Obama’s Deferred Action for Childhood Arrivals (DACA) program or the so-called DREAMers to join the military.

The program currently allows individuals with certain temporary visas with advanced medical skills, or who can speak certain languages, to enlist. Under the program, immigrant recruits become eligible for citizenship in as short as three months.

Many of the estimated 550,000 DREAMers clamored that they be allowed to enlist in the military. This new policy, however, is limited in scope and is available only to a narrow segment of undocumented young immigrants as they would need to have advanced medical skills or speak certain languages in order to be eligible for the program.

The bill called ENLIST Act introduced by Rep. Jeff Dunham (R-California) which also allows DREAMers to serve in the military and provides an expedited path citizenship is less restrictive. However, the bill was recently blocked by House Majority Leader Eric Cantor (R-Virginia).

Many believe that the refusal of House Republicans to tackle even piecemeal legislation on immigration such as the ENLIST Act is a clear indication that waiting for GOP members to act on immigration reform is futile. Immigrant-rights advocates are calling for President Obama to take action and forge ahead with his immigration agenda.

Meanwhile, Cecilia Muñoz, White House domestic policy adviser said that “The president is convinced there is legislative opportunity, and that gives us the best chance to fix what is broken in our immigration system. He wants to leave no stone unturned to let the House do what it should do.”

President Obama seems to have his full faith in House Republican leaders who appear to continually find new reasons not to support immigration reform. With current efforts for easing deportation in halt, come end of August, the immigrant community expects an immigration solution – be it from Congress or the President.

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