Monthly Archives: May 2016

How the Legalization of Same-Sex Marriage Nationwide Impacted Immigration Law

Almost a year has passed since June 26, 2015, when the United States Supreme Court ruled in Obergefell v. Hodges that the fundamental right to marriage is constitutionally guaranteed to same sex couples. At the time, Justice Anthony Kennedy wrote that gay couples have “the fundamental right to marry.” This is an especially momentous occasion when you consider that Congress only removed homosexuality as a ground of inadmissibility (ineligibility for a visa or admission to the United States) from the Immigration and Nationality Act by passing the Immigration Act in 1990. People with HIV were banned from entering the country until 2010.

 

The Obergefell decision extended the 2013 U.S. v. Windsor holding, which struck down the part of the Defense of Marriage Act forbidding the federal government from recognizing same sex marriage as an unconstitutional abridgment of due process and equal protection rights. The Windsor decision allowed same sex couples to qualify for immigration benefits to the same extent as heterosexual couples. Because the Immigration and Nationality Act did not define a spouse as either a husband or a wife, the law required no further amendments to apply to same-sex couples. Within a day of the Windsor ruling, the United States Citizenship and Immigration Services (USCIS) announced that it would start to accept same sex green card petitions. In November of that same year, Maximilian Law Inc. received its first green card approval based on same sex marriage.

 

When the Supreme Court ruled on Obergefell v. Hodges, all state laws banning same sex couples from marrying were struck down. Thus, where previously only same sex couples who were married in states that granted them marriage rights qualified for federal marriage benefits, now, all married same sex couples across the nation could qualify.

 

This was significant from an immigration law standpoint, making it much easier for foreign nationals to obtain immigration benefits through marriage. Now, homosexuals may sponsor their foreign national spouses for U.S. permanent residency. Foreign spouses inside of the United States can apply for permanent residency through adjustment of status; Foreign spouses outside of the United States can apply via consular processing. After approval, the foreign spouse becomes a conditional U.S. resident and receives a green card which is valid for up to two years from the date it is issued. Conditional residency becomes permanent residency once both parties act to jointly remove the conditions on the residency 90 days prior to the second anniversary of receiving the conditional residency. The foreign spouse may be able to bring his or her unmarried children under 21 as well under a K-2 visa.

 

Citizens may also sponsor a foreign same sex fiancé under a K-1 visa. The petitioning U.S. citizen must first file a K-1 application. Once that application is approved, the fiancé will then apply for the K-1 Visa at the U.S. consulate abroad. Upon receiving the visa, the fiancé can enter the United States and must marry the citizen within 90 days. The foreign fiancé may also bring his or her unmarried children under 21 using a K-2 visa.

How to Determine Priority Dates Using the Visa Bulletin and USCIS website

Every month, thousands of beneficiaries of an approved I-130 or I-140 petition go to the Visa Bulletin at https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html to see if their priority date is current that month. Prior to 2016, the process was pretty straightforward:

1) Check the priority date as stated on your approved I-130 or I-140

2) Check your preference category against your country of chargeability

3) If your priority date is after the date listed, then your priority date is current and you can either adjust your status or start with NVC processing

Example: John was born in Australia and his mother filed an I-130 petition which was approved. His priority date is June 1, 2005. Under the F3 family preference category for non-chargeability citizens, the priority date was December 1, 2004. His priority date is current and he can apply for his green card.

The Visa Bulletin now has two charts for both family and employment-based cases: A) Application Final Action Dates for Family-Sponsored Preference Cases; and B) Dates for Filing Family-Sponsored Visa Applications.

So which chart do beneficiaries use to determine whether their priority date is current? The answer is that it depends on whether you are in the United States and eligible to adjust your status, or whether you intend to process your application through the National Visa Center and U.S. Consulate.

If you are processing through NVC, you always rely on Chart B (“Dates for Filing”). If you are adjusting your status, you have to go to USCIS (www.uscis.gov/visabulletininfo) to determine which chart it will be using that month.

Example: John looks at the Visa Bulletin and it shows that the priority date for his category under Chart A is December 1, 2004. However, Chart B shows a priority date of August 1, 2005. Thus, he can apply for his green card through the consulate right away. However, if he wants to adjust his status, he will have to check USCIS’s website to see if it is using Chart A or Chart B for this month. Upon checking, he learns that USCIS is using Chart A for that month. Thus, his priority date is not current for adjustment of status purposes.

Maximilian Law Inc. is an immigration law firm experienced with family and employment-based green card applications.

Federal Court of Appeals Rules that Only the Executive Branch Can Correct an Incorrect Naturalization Certificate

The Ninth Circuit Court of Appeals recently ruled that the courts do not have the ability to help a naturalized citizen change her birthdate listed on her certificate of naturalization.

In 1965, Yu-Ling Teng first came to the United States on a student visa. At this point, she held a Taiwanese passport that said she was born on August 9, 1939. The Social Security Administration (SSA) issued Teng a Social Security card which stated this 1939 birth year.

Teng later applied for a green card in 1974. The signed application given to Immigration and Naturalization Service (INS) included a declaration from her aunt that incorrectly stated that Teng was born on August 9, 1944. Based on the application and its accompanying documents, INS issued Teng a green card listing her birthdate as August 9, 1944. When Teng became a U.S. citizen in 2001, she received a naturalization certificate from INS that stated her birth year as 1944.

The problems started for Yu-Ling Teng in 2004, when she attempted to renew her California driver’s license. She was denied due to the different birth years on file with the SSA and the United States Citizenship and Immigration Services (USCIS). Teng attempted to fix the problem by filing a request for a replacement naturalization certificate from USCIS. Three years later, a USCIS officer met with Teng and informed her that under agency regulations, he had no authority to change the birth date because she had signed off on the document stating her birth year as 1944. Teng turned to the SSA in an attempt to change the birthdate on file as well, with no success.

After five years of working with USCIS, the SSA, and the California Department of Motor Vehicles, Teng was able to obtain a temporary driver’s license. However, the license was not a verified identification, did not allow her to establish eligibility for voter registration, public benefits, or employment, and expired less than two months after it was issued.

Finally, a representative from Teng’s local assemblywoman’s office advised her to file a petition in federal court against the Department of Homeland Security. The district court dismissed Teng’s petition after concluding that it had not been given the subject matter jurisdiction to amend a naturalization certificate issued by an agency (defined as the authority of the court to hear cases of a particular type). Teng then appealed to the Ninth Circuit Court.

The Ninth Circuit, though sympathetic to Teng’s tenuous situation, agreed with the district court. Though courts initially had the exclusive jurisdiction to naturalize immigrants before 1991, the Immigration Act of 1990 transferred this authority to the Attorney General in the executive branch under the President. Thus, the Attorney General of the United States has the sole ability to change and update naturalization certificates.

This case illustrates the importance of having documents that have the correct information on them. If Yu-Ling Teng had caught the misstatement of her birth year in the declaration from her aunt submitted with her application for a green card and changed it before signing it, she could have avoided over a decade of trouble. This is exactly the situation an immigration attorney could have helped her avoid.

 

As Maximilian Law Inc’s website states, “When it comes to immigration law, the devil is in the details.” Contact Maximilian Law Inc to get help with your immigration into the United States today.

Options for Brazilians to Immigrate to the United States

As we head into summer, Brazil should be giddy with anticipation about the Rio Olympics.  However, the spiraling economy, violence, and Zika outbreak has instead caused many around the world to think twice about traveling to Brazil.  It has also caused many Brazilians to consider their options on moving to another country, including the United States.  Like citizens of many countries, Brazilians have several options on moving to the United States:

 

  • Marriage-Based Green Cards:  If you are married to a U.S. Citizen, your spouse can sponsor you for a Green Card
  • K-1 Fiancé Visa:  If you are engaged to a U.S. Citizen, your fiancé can sponsor you for a K-1 visa that would allow you to travel to the United States to get married and apply for a green card
  • Family-Based Green Cards:  If you have a U.S. Citizen sibling, parent or child, you can be sponsored for a green card
  • LGBT & Same Sex Marriage Green Cards:  U.S. citizens in LGBT or same sex marriages can sponsor their foreign spouses for green cards or a K-1 visa
  • Investor EB-5 Green Card:  If you invest $500,000 or $1 million into a U.S. Business, you could qualify for an EB-5 green card
  • Work Visas:  There are several work visa categories available, including the H-1B, O-1, or L-1 visa
  • School:  If you are accepted into a U.S. School, you may be able to get an F-1 student visa

If you are a citizen of Brazil looking to immigrate to the United States, the immigration law firm of Maximilian Law Inc. can evaluate your options.

USCIS Set to Increase Filing Fees

On May 4, 2016, USCIS issued a 60-day notice proposing an increase in filing fees for various applications. There has not been a fee increase since 2010. The schedule of proposed fees are as follows:

  • Form I-129 (H-1B, L-1, O-1, E-2, P-1, TN, R-1): Current fee = $325 Proposed fee = $460
  • Form I-130 petitions for alien relatives: Current fee =  $420 Proposed fee = $535
  • Form I-129F fiance(e) petitions: Current fee = $340 Proposed fee = $535
  • Form I-140 petitions for alien workers:  Current fee = $580 Proposed fee = $700
  • Form I-526 petitions by alien entrepreneurs: Current fee = $1,500 Proposed fee = $3,675
  • Form I-485 adjustment of status:  Current fee = $985 + $85 biometrics  Proposed fee = $1140 + $85 biometrics

Form I-765 employment authorization:  Current fee = $380  Proposed fee = $410

Contact an immigration lawyer if you have any questions.

U.S. v. Texas: Supreme Court Case Could Affect Millions of Immigrants

In April, the Supreme Court heard oral arguments in United States v. Texas, a case examining President Barack Obama’s programs deferring the deportation of millions of undocumented immigrants.

 

In November 2014 Obama announced the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and the expansion of the 2012 Deferred Action for Childhood Arrivals (DACA) program, potentially affecting an estimated 4.7 million immigrants in the United States unlawfully. Both programs have been on hold since a federal judge in Texas issued an injunction preventing their implementation in February 2015 (an injunction is a judicial order restraining a party from beginning or continuing an action that could potentially threaten the legal right of another).

 

Under DACA, immigrants under 31 as of June 2012 without a lawful status that meet other several other guidelines can request deferred action which would allow them to receive a renewable two year work permit and exemption from deportation. Around 800,000 young immigrants have benefited from this program. President Obama’s 2014 action would eliminate the upper age cap for DACA and grant three year work permits and exemptions from deportation rather than two years.

 

DAPA would allow immigrants who have lived in the country illegally since 2010, have children who are American citizens or lawful permanent residents, and have generally stayed out of trouble (no felonies or significant misdemeanors) to apply for deferred action as well, which would give them three year work permits and exemption from deportation for that time.

 

The Issues

 

The Supreme Court looked at several issues in the case, but much of the case focused on whether Texas had standing–the right to challenge the action in court because of a specific current or future harm to the challenging party.

 

Texas argued that the state had standing to challenge the action due to the budget impact it would suffer if it had to give drivers’ licenses to possibly millions of undocumented immigrants newly granted the right to stay in the United States (Texas charges $24 for a license but says it costs almost $200 to process each application).

 

The government argued in response that the states do not have standing to sue the government over a federal deferred-action policy because Texas cannot show that it will be directly harmed by the policy, as the policy does not regulate states or require states to do anything.

 

This Court’s decision on this seemingly small procedural issue will have a big impact on future immigration policy. The case is complicated by the death of Justice Antonin Scalia in February, which left the Supreme Court with only eight members. If the Court ties 4-4 on a ruling, the ruling from the lower court stands. In this case, the Fifth Circuit Court of Appeals ruling would be affirmed, putting DAPA and the expanded DACA on hold potentially indefinitely.

 

The Court will issue its decision by the end of June. Whatever the Court decides, the decision will almost certainly provoke debate from both immigration reform advocates and opponents in the lead-up to the presidential election in November.