Monthly Archives: June 2014

DOMA 1 Year Later: Its Effect on LGBT Immigration and Green Cards

As the one year anniversary since the Defense of Marriage Act (DOMA) was struck down approaches, it is a good time to reflect on how far U.S. immigration laws have progressed in just a few short months – extending the reach of its benefits to LGBT the many changes this has meant for same sex couples

On June 26, 2013, the U.S. Supreme Court issued two landmark cases which was a boon for LGBT rights. Hollingsworth v. Perry decided whether the Constitution barred California from limiting marriage strictly between a man and a woman. In its ruling, the Supreme Court lifted the 9th Circuit ban on gay marriage – thereby making same-sex marriage legal in California.

United States v. Windsor was based on a challenge denied federal benefits to legally married same-sex couples under DOMA. The Supreme Court struck down provisions of DOMA as unconstitutional, and as a result allowed the same federal benefits to married same-sex couples as traditional married couples.

Under U.S. immigration law, a U.S. citizen married to a foreign national may sponsor the foreign citizen for permanent residency – also known as a green card. Prior to the Windsor case, this benefit was not extended to legally married same–sex couples. Once DOMA was struck down, however, American spouses of foreign same-sex spouses were instantly able to sponsor the foreign spouse for a green card. Within a day of the ruling, the USCIS announced that it would begin accepting same-sex green card petitions – with the first one being approved merely a few days later. It was later confirmed that this benefit extended to fiancé visas – where a U.S. citizen could sponsor his/her foreign same sex fiancé under a K-1 visa.

As of the time this article was published, the following states permit same sex marriage: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.

LGBT rights have come a long way in a short time. Immigration is just one of the newly acquired benefits associated with the downfall of DOMA.  Maximilian Law Inc. is a strong advocate of LGBT rights and has successfully obtained green cards for many clients in same sex marriages.

Adjustment of Status Through Marriage Under DACA

In 2012, the USCIS began granting certain undocumented aliens employment authorization for a period of two-year years. Approved DACA applicants may also be eligible for Advance Parole, which allows them to travel outside of the United States and to re-enter, provided that it was for humanitarian, educational or employment purposes.

DACA applicants are undocumented – meaning that they did not enter the country with inspection. Generally, undocumented aliens cannot adjust their status and get a green card even if they are married to a United States citizen. Advance Parole under DACA may provide a loophole

Example

Valeria was brought to the United States by her parents without inspection when she was 3 years old. She graduated high school in 2010 and was approved for employment authorization under DACA in 2012. In 2013, her grandmother in Mexico and became terminally ill. She obtained Advance Parole under DACA and was able to visit her grandmother for the last time before she passed. She returned to the United States after a one month stay. In 2014, she married her longtime boyfriend, John, who is a United States citizen. Since Valeria was able to provide proof that she re-entered the United States legally in 2013 under Advance Parole, John can petition her for a green card and she can now adjust her status without a ten-year ban or the need for a provisional waiver. She would not be able to adjust her status if she hadn’t visited her grandmother and re-entered under Advance Parole because her only entry prior to that was without inspection.

If you have been approved under DACA, or if you may be eligible, please contact us so that we can arrange a viable strategy for you.

USCIS Will Accept DACA Renewals as Early as Four Months Prior to Expiration

In September 2012, the USCIS began approving employment authorization for certain undocumented aliens who were eligible under DACA (Deferred Action on Childhood Arrivals). The approvals were valid for two years, meaning that the first DACA approvals are set to expire in September 2014. Those who have been approved under DACA are eligible to apply for renewals as early as four months before expiration, meaning that some applications can be submitted as early as June 2014.

Maximilian Law Inc. strongly suggests that those who are looking to renew their employment authorization under DACA begin the process as early as possible in order to avoid an interruption in status. Learn more about DACA.