Supreme Court Strikes Down DOMA Section 3
On June 26, 2013, the U.S. Supreme Court declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional through its ruling in the case of U.S. v. Windsor. As a general matter and with limited exception, USCIS and the State Department look to the law of the place where the marriage took place to confirm the marriage’s validity for immigration purposes. Section 3 of the DOMA had previously prevented the Federal government from recognizing same-sex marriages for purposes of granting Federal benefits, including immigration benefits derived from marriage, even if the marriage was recognized as being legal in a U.S. state or a foreign country. Pursuant to the court’s decision, same-sex married couples should be allowed to apply for the same immigration benefits as all other married couples, including lawful permanent residence, and nonimmigrant dependent visa statuses including L-2, H-4, etc. Please note that the ruling does not apply to domestic partnerships or formal relationship registrations that fall short of a legal marriage.
Janet Napolitano, U.S. Secretary of the Department of Homeland Security, which oversees the subagencies of USCIS, ICE (Immigration and Customs Enforcement), and CBP (Customs and Border Protection), and State Department Secretary John Kerry, both enthusiastically endorsed the Supreme Court’s ruling. Secretary Napolitano’s statement can be found at: www.dhs.gov. Secretary Kerry’s statement can be found at: www.state.gov.
It is important to note that Section 2 of the DOMA remains in place, and excuses each individual state from its “full faith and credit” obligation to recognize same-sex marriages that may be legal in other U.S. states. This means that even though a same-sex couple may now be able to come to the U.S. to stay in the same place for the same duration of time, the couple’s marriage may not be fully recognized in some states for state benefits. It is also noted that some Federal agencies, including the IRS and Social Security, normally assess marital status based on the state law that applies to the place where the couples lives, and not the law of the place where they married.
The Congressional Budget Office (CBO), which provides nonpartisan analysis for the U.S. Congress, released a report estimating that the additional $38 billion proposed in the immigration bill passed by the Senate would reduce the number of unlawful entries into the U.S. by 800,000, which is a 50% reduction. This equates to $47,500 per person prevented from illegally entering the U.S. The full report can be found at: www.cbo.gov To better understand the scale of the proposed increase, it is noted that only $18 billion was spent on immigration enforcement in 2012.
The additional funding for enforcement was added to garner support from senators who wanted more enforcement to accompany the significant benefits that would flow from the proposed law, which includes:
- Legalizing the 11 million undocumented immigrants now in the U.S. by allowing them to apply for adjustment of status to Registered Provisional Immigrant (RPI) status. RPI applicants would need to pay a fine, back taxes, and wait 10 years before being allowed to obtain lawful permanent residence (green card status). They could apply for naturalization 3 years after obtaining lawful permanent residence.
- Exempting the following from the annual green card quota limits: EB-1 persons of extraordinary ability; EB-1 outstanding professors and researchers; EB-1 multinational managers and executives; persons holding a doctorate degree in any field; persons with an advanced STEM degree from a U.S. university as long as they apply within 5 years of obtaining the degree and will work in a field related to the degree.
- Providing work authorization for H-1B spouses if the worker’s home country provides reciprocal treatment to spouses of U.S. workers.
- Creating a W-1 category for lesser skilled workers, a W-2 category for agricultural workers working under a contract, and a W-3 category for agricultural workers employed on an at-will basis.
- Increasing the H-1B quota to 180,000 visas with an additional 25,000 visas made available to persons with a U.S. advanced degree in a STEM field.
- Adding an EB-6 immigrant visa category for certain entrepreneurs.
The bill would also require all employers to use the E-Verify system within 5 years of the bill becoming a law. At this point, it is uncertain as to whether or not the Senate’s bill will become law. Significant opposition in the House of Representatives remains.
Form I-94 is the small card that nonimmigrant visa holders received to confirm their lawful status in the U.S. To increase efficiency and reduce operating costs, CBP has automated the process. Nonimmigrants will no longer receive a paper I-94 card upon arrival at a U.S. airport or seaport. Nonimmigrants who need a paper copy of the I-94 arrival record will need to download it from the CBP website at: www.cbp.gov/I94 At this time, the automated system is not being used at land border ports of entry, which will continue to issue paper I-94 cards as before. Paper I-94 cards can also be issued by CBP through the secondary inspection process for persons who encounter difficulties in obtaining their record through the automated system, including persons with records “lost” in the automated system.
CBP has posted an instructional video on its website at: www.i94.cbp.dhs.gov.
The Department of Labor issued a press release announcing that its new online tool called the iCERT Labor Certification Registry is now live, making a searchable database available to the general public for DOL documents related to the H–1B, H–1B1, E–3, H–2A, H–2B and PERM labor certification programs. The documents can be viewed at: www.icert.doleta.gov . This appears to be yet another stick that the DOL is using to discourage employers from sponsoring foreign workers. For PERM cases, the DOL’s system redacts the foreign worker beneficiary’s information but includes the case job description, case requirements, salary information, attorney information, worksite address, and the company contact’s name and work e-mail address.