The Dream Today

Author: on 08/27/2013

On this fiftieth anniversary of the March on Washington to demand justice and equality, the United States has once again had the chance to rise to the “better angels of its nature” by enacting just immigration reform.   A broad-based movement consisting of the religious community, organized labor, almost every major US business interest, and immigrant activists has worked tirelessly to usher through Senate Bill 744.  At the eleventh hour, the Senate adopted the Corker/Hoeven Amendment which calls for a massive increase in military spending on the border through drones, a doubling of the already substantial number of border patrol agents, and 700 miles of additional border fencing.  This “border security surge” is estimated to cost $48.3 billion.  This massive militarization of the border is exactly what Dr. King cautioned against when he spoke of the evil triplets of “materialism, militarism, and racism.”  Most recently, Texas Congressmen Beto O’Rourke aptly described the amendment as “a bonanza for defense contractors [which will] definitely cause more death and suffering.”

The Civil Rights Movement pushed the U.S. Congress to not only pass the 1964 Voting Rights Act and 1965 Civil Rights Act, but also helped to end the overt racism of the pre-1965 immigration regime  governed by a quota system created by the 1924 Immigration Act that essentially restricted immigration from Africa and Asia.   While the 1965 immigration law did not account for native country population size, it ended the race-based system designed in 1924.

The movement for racial equality, while supported by many in power in the US, was blocked in Congress by an intransigent minority hailing from states that continued to deprive citizens of the right to vote and move freely within their borders. What eventually forced the nation to change were the daily images of peaceful demonstrators who were physically attacked by police and fellow citizens throughout the South.  The nation witnessed water hoses and attack dogs unleashed on men, women, and children.  Names like Bull Conner, Joe Clarke, George Wallace, and Orville Faubus were synonymous with hatred and viewed as killing any chance for America to live up to its promise of justice and equality.

Today, we live under the weight of twenty years of some of the most vicious anti-immigrant laws and policies, starting with the U.S. reaction to the 1995 attack on Oklahoma City’s Murrow Federal Building.  Those attacks, along with the mass burnings of black churches and the Atlanta Olympics bombing, spelled a wave of terrorism and signaled to Congress a need to act.  Although the perpetrators of these acts were ideologically connected to anti-government white supremacist groups, Congress laid the punishment on immigrant communities by passing AEDPA and IIRIIRA which have created a permanent undocumented class of immigrants in the U.S. who are unable to become documented no matter how hard they work, how diligently they raise their families, how much they contribute to their communities, or how much they contribute to the economy.

Along with important Congressional advocacy, direct action in the form of civil disobedience, marches, and rallies have been integral in keeping immigration reform on the front burner. During this Congressional recess, several high level immigrant rights activists have been arrested as a result of direct action including Immigration Equality’s Exeuctive Director Rachel Tivens, union leaders, and others.  Earlier this month three Latino-American youth joined six of their fellow DREAMers in Mexico and then re-entered the U.S.  All nine were immediately detained and their bravery refocused the conversation from where the Senate left off—million dollar drones patrolling the border—to what the House must do:  assess the human toll of the past twenty years of draconian immigration laws and set the framework for an inclusive America.  This act of empowerment, along with the August 22 arrest of DREAMers trying to block an ICE removal vehicle, continues to apply pressure to the necessary points in the system and put representatives opposed to reform on the defensive.   It is commendable and exciting that those most affected by the failure of meaningful immigration reform, young undocumented youth, have placed the issue squarely in the limelight.  Let us use their bravery as a catalyst to keep fighting for meaningful and just immigration reform and take our country one step closer to the America we all believe is possible.

Written by Mark Shmueli, Member, Media-Advo Committee

The New Provisional Waiver – A Promising Program Foundering

Author: on 08/14/2013

For a year we waited for USCIS to put into effect changes it had discussed in processing the needed waiver for the 10 year bar found in INA § 212(a)(9)(B) for those people married to U.S. Citizens who had entered the United States without inspection.  The announcement of the change to a “provisional” waiver program brought with it much anticipation and joy to those who would most benefit from this change.  Nothing was worse than leaving your spouse behind in the United States, many times with young children, for an uncertain number of months, with a strong possibility you would not come back home for 10 years.  And, as a result, many people chose not to take advantage of the waiver because of the fear of the unknown.

The Provisional Waiver regulation announced on January 2, 2013, and effective on March 1, 2013, now made it possible for foreign spouses of U.S. citizens to apply for the permanent residence without the risk associated with departing the U.S. without having the forgiveness offered by the waiver in their hand.  Being assured that you would know of the timing of your return after a brief trip to a consulate was nothing short of gift from heaven for many people.   Predictably, many couples and their lawyers prepared their waiver packages and submitted them to the USCIS as soon as they could after March 1, and many have been waiting patiently for what were promised to be approval notices.  Those approval notices, coupled with their trip abroad, would finally yield what many have desired for so long – normalcy in their lives and permanent residence.

Sadly, the hoped for promise of these provisional waivers has become nothing short of a major disappointment and some say outright fraud on the participating immigrants and their attorneys.  The USCIS has been denying many provisional waivers, not on the merits, but on technical grounds that have nothing to do with the waiver process.  A typical provisional waiver “denial” letter from the USCIS states that the waiver will not be adjudicated because the applicant “may” have another ground of inadmissibility.  For example, one waiver was not adjudicated because the applicant had given a different birth date 15 years ago when he was caught coming into the U.S. (saying he was older than he was to avoid not being sent back) and was returned to Mexico.  As any immigration lawyer will tell you, while the giving of a false date of birth “may” be a ground of denial for misrepresentation, it is not a definite denial, and one that can be dealt with at the consulate and likely without another waiver being needed.   Another example is the “denial” of the adjudication of a waiver based upon a misdemeanor offense that clearly falls within the petty offense exception, something any immigration lawyer (and consular officer) knows will not bar an applicant from being admitted to the United States.

Perhaps more disturbing is the USCIS’s new approach to adjudicating provisional waivers that ignores evidence in the filings.  A recent denial stated that the affidavit from a mental health professional of the psychological issues of the U.S. Citizen spouse were not supported by other “documentary” evidence, and thus could not serve as a basis for the establishing hardship.  Obviously, such a position ignores long-standing case law and policy on the submission of evidence.  This is compounded by the greater problem of the inability to challenge provisional waiver “denials” on appeal. Applicants are left with only refiling and re-paying for the waiver again to try to correct the erroneous decision.

Finally, the grant rate of I-601 waivers from the USCIS office in Mexico (which adjudicated the vast majority of the waivers under INA § 212(a)(9)(B)), was well over 80%.  USCIS will not release the grant rate under the provisional waiver program, but knowledgeable and experienced attorneys are seeing approval rates at or below 50%.  Let’s be fair, perhaps some people are filing cases now that were not as strong as those filed under the original consulate-based program.  But there are widespread reports of cases that are clearly approvable under any standard now being denied for vague and obtuse reasons.

Given the announcement from Secretary Napolitano and the cheery presentation of the new provisional waiver program by various DHS officials, it is alarming and ultimately disheartening to see a program that once worked well being turned into yet another poorly functioning USCIS-run nightmare.  Unless USCIS gets its act together, properly trains the adjudicatory staff, gets out of the consulate’s job of determining inadmissibility, and reinstitutes a culture of yes, the provisional waiver program will cause fewer people to attempt to secure the permanent residence for which they are eligible, and further delay any current-law based fix to their immigration status.  It will become another in a long line of Bait and Switch immigration proposals that fall victim to over-zealous and under-educated enforcement – and it will fail.

Perhaps someone at USCIS will realize how important this program could be to more than a million American citizens and their foreign national spouses. Perhaps someone at USCIS will “buck” the system and demand real adjudicatory action from its employees.  And, perhaps, someone at USCIS will ensure proper training and push for the success of a program that could change the nature of the debate on immigration reform.  I fear the problem is that that “someone” does not really work for USCIS.

Written by Charles Kuck, Member, AILA Past-President

Where’s that Finish Line?

Author: on 07/29/2013

After what seemed like a whirlwind of action in the Senate with hundreds of amendments in committee and then hundreds more filed during the floor debate, we ended up with a bill passed at the end of June.  Great timing of course because that still left a good month for the House to crank into high gear and get something passed that could then be conferenced with the Senate legislation in the fall.

And yet, here we sit with a few short work days left before the House breaks for their August recess and we have yet to see any bill come to the floor.  Now, that is actually good news in at least one way, because frankly, the five bills that have passed out of committee in the House are a mixed bag at best with one in particular that I think we all pretty much love to hate: the SAFE Act.

So, if I had to choose between the SAFE Act (or Sensenbrenner Returns) being the vehicle that is used to conference with the Senate bill and inaction, I guess I’d choose inaction.

But still, I know that many of us are champing at the bit here, wanting to push for immigration reform, wanting the next step to happen, to reach the next goal post and being disappointed when House Leadership doesn’t seem to feel the same sense of urgency.

Now we have Speaker Boehner refusing to say whether a path to citizenship might be in a House bill, Minority Leader Pelosi has said maybe a piecemeal approach would be okay if it gets them to conference with the Senate, and then some Democrats are saying that immigration reform won’t even pass in 2014 because of how tough it would be to get it done in an election year.

The question is, do we sit back and take this as gospel or do we do everything that we can to push the House to real action?

I vote for taking action.  I vote for calling our Representatives (202-224-3121) and telling them we need real, comprehensive reform now and not later.  I vote for doing district visits during the August recess and telling staff and Congressional Members about the people in their communities that are being affected, right now, by their lack of action.  I vote for responding to attacks on immigration reform in my paper by sending in Letters to the Editor and Opinion pieces and reaching out to reporters who may be confused about what’s what in immigration law.

If we, along with other community members and stakeholders, refuse to do nothing and make our voices and the voices of our clients heard, I firmly believe we can make a difference.

The Secretary Stakes

Author: on 07/19/2013

I admit to a considerable amount of surprise at Secretary of Homeland Security Janet Napolitano’s announcement that she’d be leaving DHS for the University of California system.  I’ve read all kinds of news stories about how DHS Secretary is a thankless job where one gets the blame when things go wrong (and they always do in one way or another) and no credit when things go right.

Ok, I’ll buy a lot of that.  But this is also a job where the department you head up has a huge impact on the lives of the entire populace of the U.S. as well as a large portion of the rest of the world.  No pressure, future Secretary, but let’s look at the three biggest areas you’d oversee just on immigration (leaving out the myriad other areas of responsibility you have):

United States Citizenship and Immigration Services (USCIS) “secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”

United States Immigration and Customs Enforcement (ICE): “promotes homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration.”

Customs and Border Protection (CBP): “is one of the Department of Homeland Security’s largest and most complex components, with a priority mission of keeping terrorists and their weapons out of the U.S. It also has a responsibility for securing and facilitating trade and travel while enforcing hundreds of U.S. regulations, including immigration and drug laws.”

I can’t think of another cabinet member that has this much impact on such disparate groups and stakeholders, and again, this is just the immigration related “stuff” you have to handle.

So, who is on the short-list?  According to a couple of articles in the Washington Post, here are some of the more interesting (to me) possibilities:

Alejandro Mayorkas, nominee to serve as DHS deputy secretary; Kamala Harris, California Attorney General; David Heyman, DHS Assistant Secretary for Policy; Joe Lieberman, former independent senator from Connecticut; Tony West, Acting Associate Attorney General of the U.S.; Ray Kelly, New York City police commissioner; Jane Harman, former Democratic congresswoman from California; Jane Holl Lute, former DHS Deputy Secretary; Rand Beers, Acting DHS Deputy Secretary; Jenny Durkan, U.S. Attorney for the Western District of Washington; Senator Susan Collins (R-ME)

In recent years, the Secretary has had the honor of presiding over some pretty positive changes in immigration (provisional waivers and DOMA come to mind) as well as overseeing the highest level of deportations ever.  What will come up during the next Secretary’s tenure?  Well, my fingers are crossed that it will start with a C and end with an R.  CIR!

Numbers Add Up

Author: on 07/11/2013

Numbers can be, well, mindnumbing.  But they are something that all of us use every single day.  Price of gas? A number.  Mortgage or rent payment due?  A number.  Groceries, utilities, daycare, you name it and it can be numbered.

I want to share some numbers with you—powerful numbers on immigration reform that have been stacking up over the last few months.

Today, Gallup released a poll, that showed 72% of Americans said immigration was a “good thing” for the country and a quarter who said it was bad.  That is a huge step forward as we try and convince the House that tackling real immigration reform is necessary.

People across the country are recognizing that our current system is broken, it’s not fair to families, businesses, and offers no chance of a life free from fear for those undocumented.  This isn’t red state versus blue state we’re talking about here. Polls done in 29 states, ranging from Texas to Maine and Arkansas to Illinois had over 87% off respondents (Democrats, Republicans and Independents) saying that “it was very or somewhat important that the U.S. fix it’s immigration system this year.”  It’s been a good long while since I saw over 87% of Americans agree on anything.

And despite a lot of the rhetoric out there, a majority of us (72%) are in favor of a tough but fair path to citizenship for those here without documents, including 59% of Republicans surveyed, 68% of Independents and 90% of Democrats.

Let’s not forget some of the most important numbers of all: those from the recent Congressional Budget Office (CBO) updated scoring of the Senate bill as passed.  My favorite number from that was the more than $800 billion over twenty years that would be removed from the federal deficit if we actually implement S. 744’s set of comprehensive reform provisions.

Now these are mostly national numbers, and those can be compelling but most of our Congressional leaders are going to be focused in on their constituencies and the impact of immigration on their district or state, because that’s in their interest as they gear up for the 2014 elections.  There are plenty more numbers for that each of us can use, available at AIC’s state-by-state interactive page.  And yesterday, the Institute on Taxation and Economic Policy released estimates of what the undocumented pay in state and local taxes, including what additional revenues may come in after immigration reform.

So pick a number, any number, and get out there.  Work with other stakeholders, coalition partners, and your community.  Use the numbers, add in your client stories, and our voices will be multiplied.

You Can Lead a Horse to Water…

Author: on 07/10/2013

After the House Republican Conference met this afternoon to discuss immigration reform plans, I held out hope that the Leadership of my party would see the light. (Yes, I’m an immigration lawyer and a Republican, there are actually quite a few of us out there.) Instead they’ve turned away from what needs to be done and seemingly plan to ignore the hard work of their Republican colleagues in the Senate and House, dismiss the pleas from conservative leadership in the US Chamber, reject the calls for help from small businesses, and essentially destroy the possibility of real reform this year.

How are they going to do that you ask?  They are intent on not taking up the bipartisan compromise Senate bill that was backed by a super majority of the Senate, including 14 Republicans.  They refuse to consider comprehensive immigration reform at all, choosing to push forward on a few individual pieces of incomplete and, in some cases, outright dangerous legislation that would cause economic havoc (SAFE Act anyone?).  And while the stalwart group of seven bipartisan House members has been trying to finalize a comprehensive bill in time, with the summer recess fast approaching, and no commitment by Speaker Boehner to take up the legislation if it is introduced, time is passing swiftly.

Despite the public support, the rallies, the voter polls, the stories of human impact and families, and the supportive quotes they themselves gave after the November elections, I am disappointed to see that real reform doesn’t appear to be the Republican Leadership’s priority.  If it were, they’d take up the Senate bill, see it passed–with some amendments I’m sure–and then send a strong bill to conference committee so the differences between the two chambers could be hashed out.

It’s like that old adage, “You can lead a horse to water, but you can’t make him drink.”  I will continue to beat the drum about the economic benefits of real immigration reform that the Congressional Budget Office (CBO) has reported.  I will make visits to my legislators, call, email, write letters to the editor and op-ed pieces.  I will encourage AILA members and stakeholders to do the same.

By sharing powerful examples and taking action, I hope we can give House members from both parties an understanding of why our nation needs balanced, strong, and rational immigration reform.  Make them thirsty to get this important work done.  Make them thirsty enough, and they’ll drink.


The “H” in the House of Representatives

Author: on 07/09/2013

Just before the July 4th holiday, we witnessed the Senate approving a largely sensible, sound, secure and smart immigration reform bill.  As this bill heads to the House of Representatives, the buzz is on what the House will or will not do.  Statements from House leaders range from flat out opposition to the Senate bill, to luke-warm consideration of some of the aspects of the bill.

Thus far, many of the House members’ views have been Hostile, Hindering, and Hampering toward immigration reform.  From Rep.  Bob Goodlatte (R-VA), chair of the House Judiciary Committee, arguing in favor of a step-by-step approach that so far has featured mostly harsh, overreaching and unrealistic enforcement measures, to House Speaker John Boehner (R-OH) reiterating that the House does not intend to take up the Senate bill, but it is going to do its own job in developing an immigration bill.

Common sense immigration reform must balance two competing interests.  First, it must provide undocumented immigrants with a clear, albeit arduous, roadmap to legal status and eventual citizenship. Second, it must maintain border security and overhaul our legal immigration process so that legalization today does not invite further illegal immigration tomorrow.

The Senate bill makes a good attempt to balance both. It would put millions on a long road to lawful permanent residency and eventual citizenship.  It would require applicants to pass security checks, pay fines and back taxes.  It would also put new requirements on employers, double the number of Border Patrol agents on the Southwest border, and build hundreds of miles of border fence. Importantly, it would provide the country with an immigration process designed to meet the economic and social challenges of the 21st Century.

Inexplicably, in light of the Senate passing a tough immigration reform package—one that even Senate Republicans described as “almost overkill”, the House Republicans claim  it lacks a strong “trigger” provision that would make legalization dependent on measurable progress on the enforcement front.

So what the Senate sees as Sensible, Sound, Secure and Smart, the House finds Hollow, Haphazard, and Hyped.

For immigration reform to become a reality and an historic accomplishment of the 113th Congress, the House must step up to the plate and demonstrate true leadership for America.  First, Speaker Boehner must commit to bringing an immigration reform package to the floor for a vote.  That means moving away from the gridlock-inducing mentality that says there must be a majority of Republican caucus votes to move legislation to a vote by the full House.

Second, members of the House must realize they have a tangible, real and crucial opportunity to show the American people that “H” stands for Humane, Humble, Heartfelt, and Historic.  The House leadership must see the Humanity in immigration, they must be Humbled by the struggles of everyday immigrants who contribute to our communities, our schools, our lives, and our Country; they must show they are Heartfelt by the stories of young and old leaving families behind in search of a better future, that they understand the Historic importance of these times and their impending ability to make it real.

Immigration is about the Human aspect, about the Humility of many and the History of our Country.  Leaders of the House have no small feat before them, but let them not forget it is Human and not just Hubris.

Let’s Celebrate What Makes America Great and Keep Immigration Reform Moving Forward!

Author: on 07/03/2013

This past week was truly a historic week for our nation.  The Supreme Court ruled that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional as its “demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”

DOMA’s principal effect was to identify a subset of state-permitted marriages and make them unequal. The result of DOMA was to impose inequality and to deny the dignity and integrity of the person in a committed, loving relationship.

Edie Windsor, the woman who brought DOMA to the Supreme Court said in an interview with Diane Sawyer about the Supreme Court decision: “It is the beginning of the end of stigma, the end of lying about who we are.”

To their credit, the Department of Homeland Security has embraced this change wholeheartedly and is working to incorporate this change into every area of immigration law that it touches.  I know so many families for whom this will make all the difference.

Another historic event this past week was the Senate’s approval of their immigration reform bill S. 744.  In a vote of 68-32, the Senate demonstrated remarkable bipartisan commitment to remedy our dysfunctional immigration system in a spirit of compromise and cooperation.

The passing of the Senate bill was what I most fervently hope is the beginning of the end of “stigma” for the millions of aspiring Americans who live in the shadows, who fear separation of families, who struggle to be accepted by the communities of which they are already an integral part.

The bill now goes to the House of Representatives, and House Speaker John Boehner (R-OH) has said that for “any legislation, including a conference report, to pass the House, it’s going to have to be a bill that has the support of a majority of our members.”   His statement however, ignores the fact that the majority of Americans support the principles of the Senate bill including a roadmap to citizenship.

I understand the desire of the House to follow “regular order” which would mean that the House Judiciary Committee would first take up any immigration legislation.  So if that’s the sticking point, we need to call on the members of the House Judiciary Committee get in gear and show how our political system can embrace what makes America great.  They can move forward to end more than 20 years of a dysfunctional immigration system that stifles our ability to bring talent, separates families and does not protect our borders.

Immigrants have been part of the American social fabric since the founding of our nation.  Immigrants are our communities.  They are the colleague in the office down the hall, the mother sitting in the church pew next to you, the pastor celebrating Sunday service, the doctor who has taken care of your family, the teacher who shares her knowledge with our children.

When I think about what the birthdate of our nation means, I think about all the then aspiring Americans who celebrated that fateful day of July 4, 1776 and the many more who have since had a profound impact on our country and its success.   So many of them are immigrants.  Their story is our story.  So many of us, the American people, are immigrants, and that is our strength.

As we gather this week to celebrate the fourth of July, let’s remember the principles upon which America was founded in the values of family, liberty, respect and dignity and let’s hope our leaders in the House of Representatives will stand up for those values and pass immigration reform.

“I’d Like to Thank the U.S. Senate…”

Author: on 06/29/2013

Seriously, I can’t quite believe it.  The Senate managed to give me a birthday gift, Christmas present, and welcome basket beyond my wildest expectations on the day that I was installed as AILA’s President.  S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act” was passed by the Senate with a bipartisan vote of 68 to 32.

Despite the issues with this bill, and there are a lot of them, let’s be honest, it remains that this bill is a concrete framework with which we can work.  We’re immigration lawyers, and we know that the legislative wording really boils down to real people, their real lives, and real impact.  It’s not a perfect bill, but no compromise measure ever is or will be.  Instead it is a huge step forward on the road to immigration reform that will make a difference to millions of people.

So, thank you to the U.S. Senate, all the hours of work the staff of the “Gang of Eight” and all the Senators, who put this bill together.  Thank you to the stakeholders, the groups and organizations that offered analysis and advice, including our own AILA National staff who all worked however possible to highlight ways to make the bill better.  Thank you to all the AILA members who called their Senators, talked to staff, encouraged clients to share stories, or contacted the media to support real reform.

But most of all, thank you to the immigrants, those documented and undocumented, family and friends, siblings and strangers, who made the case in their communities.  Our nation is not just a nation of immigrants, it is a nation of communities and the sheer power of a multitude of communities coming together has been proven again.

There’s a long road ahead, and it leads right through the House of Representatives, and I can tell you right now there are people who are saying immigration reform is already dead because of what the House leadership has said they will and won’t do.  But we need to call again on the communities that we have built, we need to get out there and be heard.  We need to make the case in every Congressional district, in every state, all across the nation. We’re closer now, than we have ever been.  Our country needs real immigration reform and I ask all of you to fight for it with me.

Ding Dong, DOMA Is Dead

Author: on 06/26/2013

Cheers erupted this morning outside the Supreme Court as the ruling was announced that by a 5-4 decision, Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional.

For over 15 years, because of DOMA, bi-national same-sex couples were often forced to choose between separation or staying together, but living in exile from the U.S.  Our nation was really behind the times on this, since over 30 countries provide immigration benefits for same-sex couples and we have seen firsthand the incredible toll of this unconstitutional discrimination.  Any American would agree that being forced to choose between your homeland and your loved one is a heart-breaking choice, and not one that is worthy of our traditions of liberty and fairness.  And today, in a landmark civil rights decision, the Supreme Court agreed, striking down part of DOMA as unconstitutional.

Under current law, the agencies charged with administering the immigrations laws may only recognize lawfully married couples—and under DOMA’s federally mandated discrimination, that explicitly excluded same-sex couples.

As immigration lawyers, we know that whether a marriage is valid impacts all areas of immigration law:  for example, a lawful union would be required before the CEO of a multinational company could relocate to the US with her partner and a US citizen or resident may only sponsor a spouse or have a stepchild relationship recognized where there is a valid marriage.  Even in something as serious as a potential deportation, an immigration judge is barred from looking at the hardship on US citizen or permanent resident partner for an individual facing deportation—unless there is a marital relationship.

There will certainly still be challenges for same-sex couples in the immigration process.  Only twelve states and Washington, DC (in addition to 15 countries) recognize same-sex marriage.  Civil unions or domestic partnerships—so far—do not appear to be covered by the ruling.  Traditionally, the immigration authorities have recognized family relationships based on where the event was celebrated, rather than where the couple lives.  The continued application of that rule will ensure that a couple that legally married in Iowa, for example, but moved to a state like Colorado (which has a state constitution ban on gay marriage) can still be recognized as spouses under Federal immigration law.

Same-sex bi-national couples will still face more and different hurdles than heterosexual couples in the immigration process.  For example, there may be increased scrutiny as to the bona fides of a same-sex relationship, which—combined with greater challenges to providing evidence of a marital relationship that are traditionally the subject of agency review—may make it harder to prove a real relationship.

Even if DOMA has been struck down, that doesn’t mean that LGBT individuals are suddenly free from prejudice.  Some individuals may not want to disclose their sexual orientation to their employer, friends or family, meaning that a rich source of corroborating evidence may be off limits.  For others, the reality may be that it’s just not safe to openly admit they are gay, much less identify a spouse.  The Supreme Court’s invalidation of DOMA only struck the Federal government’s ban on recognition of marriage.  It did not protect LGBT individuals from discrimination or worse, and it will be critical for all elements of the process—including the Department of State in the workings of its consulates overseas—to be particularly sensitive to this potential harm.

As an extra benefit, allowing our immigration system to recognize same-sex bi-national couples will also make America more attractive to global talent.  According to Immigration Equality, there are an estimated 36,000 same-sex bi-national couples in the United States, and those families include 25,000 children.  AILA believes that LGBT/same-sex families should be included in the definition of the American family and that should be reflected in our immigration laws. The Supreme Court’s ruling today will guarantee all lawfully married couples equal rights in regards to immigration.

Same-sex bi-national couples have fought long and hard for the right to keep their families together.  It’s only fair that if a U.S. citizen or permanent resident is legally married—regardless of sexual orientation—that their lawful marriage be recognized by the federal government when it comes to immigration issues.