USCIS to review visa petitions by same-sex spouses

DHS Secretary Janet Napolitano has directed USCIS to “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

In light of the U.S. Supreme Court’s decision to strike down the Defense of Marriage Act (DOMA) as unconstitutional, Napolitano ordered USCIS to implement the ruling “swiftly and smoothly.”

If you are a U.S. Citizen or Lawful Permanent Resident, and you were lawfully married to a person of the same sex in a jurisdiction that legally recognizes same-sex marriage, then you may file and I-130 Petition to begin the green-card process for your same-sex spouse.  USCIS will review your petition and will make a decision using the same procedures and rules that are used to review petitions filed for opposite-sex spouses.

If you and your same-sex spouse were lawfully married in a place that legally recognizes same-sex marriage, but you now live in a  state that does not recognize same-sex marriage, USCIS will still review your petition.  With very few exceptions, USCIS will look the law of the place where you married, and not to the law of the place where you are currently living, to determine whether your marriage is valid for purposes of immigration law.

Please note that, as with all marriage-based petitions, USCIS will review each petition to determine not only whether the marriage is legally valid, but also to determine the good-faith nature of the marriage.  USCIS looks to the circumstances of the marriage relationship, including, but not limited to, issues such as whether the couple live together, share financial burdens and benefits, and have a history of being in communication with one another over time.

If you are considering filing a marriage-based petition, it is a good idea to consult with an immigration attorney in order to have the best chance of success and to avoid problems with the petition.

Supreme Court Ruling Will Allow Same-Sex Married Couples to File for Immigration Benefits

Today the U.S. Supreme Court decided, in a case called United States v. Windsor, that the federal Defense of Marriage Act (DOMA) is unconstitutional and is therefore invalid.

This means that same-sex couples who are legally married in one of the states or jurisdictions that recognize same-sex marriage will have their marriages recognized by the federal government.

Although we have not yet received an announcement from U.S. Citizenship and Immigration Services (USCIS) about the Supreme Court ruling, it appears likely that same-sex couples who are legally married in the United States will be able to apply for immigration benefits, such as permanent resident (green card) status, based on the marriage.

We hope to receive confirmation soon from USCIS regarding the ability of legally married same-sex couples to apply for immigration benefits.

DHS Secretary Napolitano agrees to implement immigration law changes for same-sex married couples

Janet Napolitano, Secretary of the Department of Homeland Security, applauded the Supreme Court’s decision in United States v. Windsor, holding that the Defense of Marriage Act (DOMA) is unconstitutional.  Secretary Napolitano pledged to “implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

6th Circuit Rules that TPS Recipients Are Eligible to Adjust Status

The U.S. Court of Appeals for the Sixth Circuit recently ruled that certain persons who have Temporary Protected Status (TPS), and who are eligible to apply for permanent resident status, may obtain permanent resident status while remaining in the United States, despite the fact that they entered the United States without permission.

In Flores v. USCIS, a Honduran citizen, Mr. Saady Suazo, entered the United States without inspection (EWI), and then applied for, and was granted, TPS, and has maintained TPS status ever since.  Mr. Suazo then married a U.S. Citizen.  Together they filed applications for Mr. Suazo to adjust status to Permanent Resident, without leaving the United States.  U.S. Citizenship and Immigration Services (USCIS) denied the application for permanent resident status because Mr. Suazo had entered the United States without inspection (EWI).

The Sixth Circuit, which addresses cases in Michigan, Ohio, Kentucky, and Tennessee, held that Mr. Suazo is eligible to adjust his status without leaving the United States, even though he had entered EWI.

Notably, the Court concluded by stating:  “We are disturbed by the Government’s incessant and injudicious opposition in cases like this, where the only purpose seems to be a general policy of opposition for the sake of opposition.”

It is not clear whether the Government will request a rehearing of the case before all of the judges of the Sixth Circuit or request a review by the U.S. Supreme Court.

The New Provisional Waiver

DHS has published the new provisional waiver rules. USCIS will begin to accept applications for provisional waivers on March 3, 2013.

The new waiver process allows certain people to apply for waivers in inadmissibility while remaining in the United States. If the waiver is approved, then the applicant goes abroad for an immigrant visa interview.

Provisional Waiver Expected Soon

We expect that the U.S. Government will soon publish a new procedure that will enable certain persons to apply for waivers while they remain in the United States.

Although we cannot be sure, we believe that the new procedures will be announced very soon, possibly as early as Monday.  We do not yet know when the new procedure will take effect, but we believe that the new procedure will take effect soon.

As soon as the new procedure is announced, we will have more information about eligibility requirements and procedures.

DREAM Announcement – Don’t Be Fooled

On June 15, 2012, the U.S. Department of Homeland Security announced that it would grant “Deferred Action” for certain people in the United States.

If U.S. Government officials are not in the process of trying to deport you, and if U.S. Government officials have never ordered your deportation in the past, then at this time you are NOT yet eligible to make any applications for anything related to this announcement.

Don’t be fooled by people offering you a green card, work authorization, or any other immigration benefit due to the recent announcement by the U.S. Government!

If the U.S. Government is not trying to deport you at this time, then you will need to wait until government officials create an application process, which will probably be in the month of August 2012.

If U.S. Government officials are in the process of trying to deport you at this time, then you should contact a knowledgeable and ethical immigration lawyer to determine if you might be eligible for the new procedures.

You might be eligible for “Deferred Action” if you meet all of the following:

  • You entered the United States before you turned age 16
  • You are now under age 31
  • You have lived in the United States for at least 5 years as of June 15, 2012
  • You are enrolled in school now, OR you graduated from high school, OR you have a GED, OR you have been honorably discharged from the Armed Forces
  • You have not been convicted of a felony, you have not been convicted of a “significant” misdemeanor, and you have not been convicted of more than 3 misdemeanors
  • You do not pose a threat to national security of public safety

You should speak with a knowledgeable and ethical immigration lawyer about your own particular immigration matter.

U.S. announces Deferred Action for some DREAMers

From the U.S. Department of Homeland Security:

WASHINGTON— Secretary of Homeland Security Janet Napolitano today announced that effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.

“Our nation’s immigration laws must be enforced in a firm and sensible manner,” said Secretary Napolitano. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”

DHS continues to focus its enforcement resources on the removal of individuals who pose a national security or public safety risk, including immigrants convicted of crimes, violent criminals, felons, and repeat immigration law offenders. Today’s action further enhances the Department’s ability to focus on these priority removals.

Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

  1. Came to the United States under the age of sixteen;
  2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
  3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. Are not above the age of thirty.

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than 5 years immediately preceding today’s date. Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurance that all such requests will be granted. The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days. In the meantime, individuals seeking more information on the new policy should visit USCIS’s website (at www.uscis.gov), ICE’s website (at www.ice.gov), or DHS’s website (at www.dhs.gov). Beginning Monday, individuals can also call USCIS’ hotline at 1-800-375-5283 or ICE’s hotline at 1-888-351-4024 during business hours with questions or to request more information on the forthcoming process.

For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria and have been offered an exercise of discretion as part of ICE’s ongoing case-by-case review, ICE will immediately begin to offer them deferred action for a period of two years, subject to renewal.

Temporary Protected Status for Syrians

On March 23, 2012, Janet Napolitano, Secretary of the Department of Homeland Security (DHS), announced that DHS will designate Temporary Protected Status (TPS) for Syrians currently present in the United States.  Napolitano stated that “conditions in Syria have worsened to the point where Syrian nationals already in the United States would face serious threats to their personal safety if they were to return to their home country.”

Within the next several days, DHS will provide further guidance about TPS eligibility requirements and registration procedures.

Click here for a DHS press release.

Click here for USCIS information about TPS.