June 28, 2013 –
Historic week for U.S. immigration

DOMA STRUCK DOWN

On June 26, the Supreme Court issued its decision in United States vs. Windsor, holding that certain provisions of the Defense of Marriage Act (DOMA) are unconstitutional. DOMA denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits.

Marriage is relevant in the context of immigration matters in numerous instances, including:

• A U.S. citizen or lawful permanent resident’s sponsorship of a foreign national spouse to obtain lawful permanent resident status for his or her spouse;
• The awarding of “derivative status” to a foreign national spouse of a principal applicant for a nonimmigrant or immigrant employment-based visa; and
• Consideration by an immigration judge of the hardship on a U.S. citizen or lawful permanent resident spouse in order to award discretionary relief in a deportation proceeding.

As a result of the Supreme Court’s decision, in these and other immigration contexts, legally married same-sex couples should now have access to the same immigration benefits as heterosexual couples. The ruling may also result in making the U.S. more competitive in its effort to attract global talent.

The following states recognize or will soon recognize same-sex marriage:  California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and the District of Columbia.

Historically, U.S. immigration authorities look to the location where the marriage took place rather than the location where a couple lives to determine validity of the marriage. As such, it appears that a same-sex couple who moves from a state where their same-sex marriage was entered into to another state that does not recognize the marriage should still have their marriage recognized under federal immigration law.

Secretary of Homeland Security Janet Napolitano issued a statement advising that the Department of Justice will implement the decision so that all married couples will be treated equally and fairly in the administration of U.S. Immigration laws.

Specifics regarding the implementation of the ruling in the immigration context have not yet been published. We will continue to monitor the government’s response to the new Supreme Court ruling. In the meantime, immigration counsel should be consulted for any questions regarding immigration benefits in this area.

SB 744 ENTITLED “BORDER SECURITY, ECONOMIC OPPORTUNITY, AND IMMIGRATION MODERNIZATION ACT OF 2013” PASSES SENATE

On June 27, the U.S. Senate voted 68-32 in favor of final passage of Senate Bill 744 entitled the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013,” moving the United States one step closer to Comprehensive Immigration Reform. SB 744, which is many hundreds of pages, contains provisions addressing numerous aspects of our immigration system, including but not limited to:

• the creation of a new “Registered Provisional Immigrant” (RPI) status to provide a path to citizenship for persons unlawfully in the U.S. before a certain date;
• guest worker program provisions for high-skilled, low-skilled and agricultural workers; and
• a five-year phase-in of mandatory use by employers of the E-Verify system.

SB 744 also contains stringent border security provisions relating to implementation of a Comprehensive Southern Border Security Strategy and the Southern Border Fencing Strategy. Important provisions regarding employment-based visas include expanded nonimmigrant and immigrant prospects to take advantage of global talent, provisions regarding new fees and requirements to combat fraud, and a continued emphasis on work site enforcement to ensure that U.S employers maintain a legal workforce.

For a comprehensive summary of SB 744 see the Library of Congress’ Bill Summary & Status.

The White House and Secretary of Homeland Security have both issued statements relating to passage of SB 744 by the Senate: Statement by President Obama on Senate passage of immigration reform (press release, 6/27/13) and Statement by Secretary of Homeland Security Janet Napolitano on Senate passage of immigration reform (press release, 6/27/13).

Whether Comprehensive Immigration Reform will become a reality, however, will turn on the outcome of the House of Representatives’ consideration of its own immigration reform legislation, which now moves to center stage. In order for immigration reform to take place, the House would have to pass legislation, and any differences between the Senate and House legislation would have to be reconciled.