How does the repeal of DOMA affect immigration for same-sex couples?
On June 26, 2013, The United States Supreme Court ruled in United States v. Windsor, that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional and affirmed that all married couples deserve equal legal respect and treatment from the federal government. DOMA had been cited as the primary reason that USCIS previously denied green cards and immigration benefits to lawfully married same-sex couples. Since this ruling, the immigration attorneys at Ryan Swanson have successfully advocated for spouses of same-sex couples in family-based immigrant petitions to ensure that families remain united. A few items to remember:
- The USCIS and U.S. Department of State will recognize lawful same-sex marriages and spouses if the marriage is valid under the laws of the State or country where the marriage ceremony was performed.
- If a couple marries in a state or country were same-sex marriage is legal, they are eligible for immigration benefits—even if they no longer live in a state with same-sex marriage laws.
- Couples living in domestic partnerships or civil unions will need to get married before they can be eligible for these immigration benefits.
- Derivative benefits will also be extended to spouses and children of same-sex spouses where eligible.
Additional Frequently Asked Questions
- Should my company have a corporate compliance program for dealing with an audit of the Form I-9?
Absolutely. In this day and age of workplace raids and USCIS enforcement of I-9 compliance, it is critical that a corporation have a program in place to deal with an I-9 audit. The program should set out standards and procedures for completing the I-9 Form with due diligence/checks and balances built into the system. The company needs universal worker compliance training from the boardroom to the shop floor. Detailed written guidelines should be in place with an effective auditing and monitoring procedure. The company also needs a program for prompt investigation of complaints followed by remediation and disciplinary action for violations found in the workplace. We recommend that you conduct a self-audit of your I-9s at least annually to remove I-9s that are not required and ensure they have been completed properly.
- Do all visitors to the U.S. require a visa in advance of their travel?
No. The Visa Waiver Program (VWP) allows the citizens of selected countries (currently 37) to travel to the United States for a maximum of 90 days for tourism or business without first obtaining a visa. On November 1, 2012, the Department of Homeland Security designated Taiwan as a member of the Visa Waiver Program (VWP). The Department of Homeland Security (DHS) announced that nationals of these countries will no longer need visas for tourist and business travel to the United States for up to 90 days, provided they possess a biometric passport and register online through the Electronic System for Travel Authorization (ESTA). Applicants under this program must possess an e-passport for entry.
- What is the Rule About Trade-NAFTA Professionals?
Effective October 16, 2008, the U.S. Citizenship and Immigration Services increased the maximum period of admission and extension of stay for Trade-NAFTA (TN) professionals from Canada and Mexico from one to three years. Although the new rule allows a maximum period of three years, each petition must justify the amount of time the TN professional must be in the United States to perform the duties required. This means that a TN professional may only be admitted for a period of time less than three years if the TN professional’s services are only required for a shorter period of time, for example, eight months. Among the types of professionals eligible for TN status are accountants, engineers, lawyers, nurses, pharmacists, scientists, and teachers. For more information on what positions qualify for TN professional status, please contact one of our immigration attorneys at Ryan Swanson.
- How do I prepare my employee for international travel?
In today’s global economy, it is more important than ever to adequately prepare your employees for travel abroad and successful re-entry to the United States. The employee must bring proof of legal immigration status in the U.S. and a valid passport with a valid visa, if applicable. The employee should also bring a current letter from the employer verifying his/her employment. Any business cards in possession should be consistent with the position for which he/she has authorization to work. Note that all belongings are subject to inspection including a laptop, cell phone, wallet, automobile, palm pilot, suitcases, and anything the employee is carrying on his/her person. Last but not least, be aware of all customs regulations including what not to bring and what items would have to be declared upon entry.
- Would becoming a citizen impact my estate plan even though I have been here for years?
Yes, it could. On the Fourth of July thousands of new citizens were sworn in at ceremonies here in the state of Washington and around the U.S. This new status not only means the person can now vote, but it also may impact the person’s estate plan. The federal estate tax laws have special provisions for those who are U.S. citizens, so this would be a good time for the new citizen to review his/her estate planning with an attorney who is familiar with estate tax laws and their impact on estate planning. A person’s status here in the U.S. depends on whether or not he/she is a tax resident, which is highly influenced by the number of days a person is here. It can also be determined by the immigration status the person holds.
- If I enter into a contract with the federal government, must I enroll in E-Verify?
Most likely. The Department of Homeland Security (DHS) proposed a new rule that would designate E-Verify as the electronic employment eligibility system for which employers who are also federal contractors must use as required by Executive Order 12989, as amended. E-Verify, operated by USCIS in partnership with the Social Security Administration (SSA), is an Internet-based system that allows employers to confirm the immigration status and eligibility for employment of new hires. Employers are cautioned to consider the consequences of joining the E-Verify system, including signing a Memorandum of Understanding (MOU) that will open their personnel files to many other agencies. We also caution employers that the information received from E-Verify and SSA may not be accurate. Many agencies are creating their own rules to comply with this Executive Order.
- What are the new civil fines against employers for immigration violations?
USCIS recently announced higher civil fines which can be assessed against employers who violate federal immigration laws, effective March 27, 2008. Employers may be fined under the new regulations for knowingly employing unauthorized aliens or other violations including failure to comply with the requirements relating to employment eligibility forms. The minimum penalty for the knowing employment of an unauthorized alien increased to $375. Some of the higher civil penalties increased by $1,000; for example, the maximum penalty for a first violation increased from $2,200 to $3,200. These penalties are assessed on a per-alien basis; therefore, it is critical that the proper work authorization is verified prior to hiring any new employee.
- US ICE officers have been showing up unannounced at businesses to conduct audits. What should we do if we have a visit?
Prepare in advance. There will be more “visits” by officers with badges. You should conduct an internal audit of your Forms I-9 to see if you have one for everyone who is currently listed on your last Form 941 and possibly for every employee who has left your employment within the last three years. If the forms are not complete, get them completed and dated on the day you get them done. When the officers do show up, with no search warrant, you have 72 hours in which to produce the Forms I-9. Ask them where to deliver the forms. There are civil and criminal penalties, so be careful. Lastly, be sure you are now using the revised Form I-9 which has the date of March 8, 2013 as previous versions are not accepted.
- I am engaged to someone who lives abroad, what is the process I need to follow in order to help my fiancé become a U.S. citizen?
To initiate the process, the U.S. citizen petitioner must file an I-129F Petition for Alien Fiancé. The fiancé who is living abroad must complete a form G-325 and provide passport photos to be included in the application. The USCIS charges a $340 filing fee. It is imperative the petitioner file a complete application including proof of meeting in person within the last two years and bona fide evidence of the relationship. A signed statement by both the U.S. citizen and the fiancé confirming their intent to marry is a required part of the petition. Once this application is filed, it can take 4-6 months for processing.
Once the I-129F has been approved, the next step in the process is for the National Visa Center (NVC) to conduct background checks on the fiancé. Once the security checks are completed, the petition is forwarded to the Consulate where the fiancé will apply for the K-1 visa. A K-1 visa is similar to processing a permanent residency application. The fiancé will need a police certificate for every country they lived in for more than six months, a medical exam and proof the U.S. citizen can provide financial support for their future spouse.
Once the K-1 visa has been issued, the fiancé can enter the U.S., but cannot travel outside the U.S. The couple must marry within 90 days and then file an adjustment of status with the U.S.C.I.S. Lockbox with an additional medical exam and a filing fee of $1,070 and numerous other documents. Each state varies in processing times to interview the couple and hopefully approve the conditional residency of the applicant.
As you can see, the process is very complicated and involves numerous government agencies; including the U.S.C.I.S., National Visa Center, the Department of State consulate office, the local office of the U.S.C.I.S. and local fingerprint facility. If you wish to consult on this process, we are happy to help.