DOMA and Immigration

The Supreme Court of the United States issued a ruling on the Defense of Marriage Act of 1996 that may have drastic effects on the immigration of same-sex couples.  Prior to today's ruling, a legally married same-sex couple could not file for immigration benefits of their spouse.  In completing forms and attending interviews of a gay partner, it was always difficult to navigate which box to check and whether to present a marriage certificate.  I always marked the couple as "married," if they were married, but inevitably the immigration officer would change it to "single" because gay marriage was not recognized by the Federal Government.  In trying to be completely honest in the application, it was always uncomfortable.  That will no longer be the case. 

With the Supreme Court's ruling United States citizens legally married (as opposed to those in domestic partnerships or civil unions), will likely be able to bestow immigration benefits upon their foreign-born spouse, regardless of his or her respective genders.  This will affect which citizens can petition for their spouse, which deportation or removal cases are impacted and finally answer the question of "do I mark married or single," on the immigration forms?"

I-601 Waiver and Success Story

A common misconception about immigration law is that if a person marries a United States Citizen spouse, they will either get citizenship or a green card without a problem.  In fact, the process is a lot more difficult, especially if there is an issue with unlawful presence and/or not having been inspected by an immigration officer at the border. 

Take the following scenario:

Brought here as a child, Brenda is now 25 years old.  She is from Mexico and has never had a United States visa of any kind.  She falls in love with a United States Citizen, John.  John and Brenda come to my office hoping to "fix" her papers.  Because her entry was not lawful and she has accumulated unlawful presence since turning the age of 18, she will have to return to Mexico to process a marriage-based green card application.  Herein lies the problem:  when she leaves the United States, she will be hit with a 10-yr bar.  There is a waiver for the bar (if there is only unlawful crossing), but the waiver requires John to prove that life without his wife is extreme hardship.  He also has to prove that relocating to Mexico is not an option for his family.

Extreme hardship can consist of medical reasons, financial reasons, emtional factors and a myriad of other issues that make living apart a hardship for the family.  "Hardship," under immigration law is more than normal pains of separation.  It can be a difficult standard to meet.


New procedures will be implemented this fall to the processing of waivers, but the need for waivers remains.  They are not easy.  If you or your spouse is in need of a waiver, it is best done through an attorney. 

Success Story:  I-601 granted today (9/5/2012) for a client waiting for 2 years in Mexico.  She will be glad to rejoin her husband and children in the United States.  The firm was retained this spring and many hours went into the preparation of her case along with a large stack of documents including:  medical records, letters, photos and more.  All of the hard work was certainly worth the effort.

Deferred Action for Childhood Arrivals, or DACA, is now open for applications.  The forms, which include the form for deferred action, work permit forms, etc., can all be found at USCIS.gov.  There are also many documents that need to go into the packet, including but not limited to:

1.  Identity Documentation (passport, birth certificate with ID).
2.  Proof of High School Diploma (or equivilant) or proof of current enrollment
3.  Proof of Continuous residence from 2007-2012
4.  Proof of Presence in the Country on June 15, 2012

Deferred Action (or Dream) also requires that you have no felonies or significant misdemeanors with a maximum of 2 small misdemeanors.  This will be determined by fingerprinting and a full FBI background check.  The USCIS website has many resources available to you to review. 

Many people have chosen to file the forms by themselves.  While it saves money, it would be good to get a professional opinion from an attorney or a local nonprofit (many of whom are running clinics).  Sarah Berry is available for consultations in her Pleasanton office and Tracy office.  Please call to make an appointment. 

Deferred Action or "Dream"

By Natalie Dayton

Deferred Action for Childhood Arrivals

On Friday morning, June 15, 2012, the Obama administration announced new policy, effective immediately, that will affect an estimated 800,000 immigrants currently residing in the United States.

The policy contains traces of the “Dream Act”, a measure blocked by Congress in 2010, that would have allowed undocumented five year residents of the States who have demonstrated good moral character the chance to obtain temporary and eventually permanent residence in the U. S.

            The policy pertains to those under the age of 31, who have arrived in the United States before the age of 16 and have lived in the country for five years. In addition to these requirements, the individual must have earned a high school diploma, be currently enrolled in school, or have served in the military. They also must have no criminal record (felonies and significant misdemeanors).

            If these requirements are met, the young immigrants will be eligible to apply for a two-year “deferred action” which is a reprieve from deportation for two years. There is allowance for repeated extensions.

            Those with approved deferrals will have the opportunity to apply for work permits.  According to officials, each case will be dealt with on an individual basis.

            This policy offers exciting new potential for allowing immigrants who have grown up in the United States undocumented through no fault of their own, a chance to remain in the land they call home. 

Success Story! U Visa for Armed Robbery Victim.

The U visa was approved for an armed robbery of an Oakland shopkeeper. The victims actually held the robber until the police arrived.

Marriage or No Marriage?

When applying for a marriage-based visa, it is important to verify whether any previous marriages are lawfully terminated. In some cases, the end of the marriage is not so obvious. Take the following examples:

1. A religious marriage with no civil authority
2. A marriage before the date of the final divorce decree, but after the divorce filing.
3. A divorce done in the United States, but the marriage still valid in foreign country.

In each case, learning whether one is legally available to marry is key to obtaining a marriage-based visa. Some marriages are recognized in some countries, and not in others. Some divorces are likewise recognized in some places, while being invalid in others. Where a previous marriage is not adequately terminated, the visa petitioner can risk having the visa denied and/or having their immigrant spouse deported. Don't take the risk. Figure out whether the marriage is valid BEFORE filing any paperwork. Good luck.

Asylum Approved!

February's big news was the approval of an asylum case. The client had a credible fear of being killed upon his return to Honduras for his religious and political beliefs, in addition to his social group. Thanks to the Lawyer's Committee for Civil Rights for the challenging case, and a wonderful volunteer translator, Gloria.