Supreme Court strikes down DOMA - what are Immigration consequences?

With the demise of the Defense of Marriage Act, commonly referred to as DOMA, the path toward same sex or gay spousal immigration rights has been paved. While no statement has yet been released by the US Citizenship and Immigration Services (USCIS), it is difficult to define any grounds that USCIS might rely on to continue its past ban on recognizing same sex marriages. "The federal statute is invalid [DOMA], for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Justice Anthony Kennedy wrote in the majority opinion. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” Perhaps most importantly for same sex partners seeking immigration benefits, DOMA was not struck down on 10th Amendment arguments, i.e. making gay marriage a purely State’s Rights issue. Rather DOMA was struck down on 5th Amendment grounds. As such there appears no legal wall behind which USCIS may hide its current anti-same sex marriage stance. If a state or nation recognizes same sex marriage, the federal government – USCIS included – may not displace, disparage, or cause injury to same sex married spouses. In other words, regardless of how USCIS reacts to the Supreme Court decision, those that attempt to file cases based on same sex marriage appear to have a very solid case should USCIS deny a case and the case then be taken up on appeal to federal court. Whether a few test cases will be needed to prod USCIS in line with the Supreme Court’s decision or whether USCIS will actively reach out to the LGBT community to assist them in filing their petitions remains to be seen. Christopher M. Pogue, Esq. is Of Counsel with the Fleischer Law Firm, LLC in Cincinnati, Ohio. His law practice specializes in representing individuals, families, and businesses around the United States and around the world in US immigration matters.

Update on H-1b receipts for FY 2014

USCIS has started the data entry process for H-1B petitions selected in the lottery. Premium processing cases are being handled first and data entry for those cases should be completed by April 15. USCIS announced on March 15, 2013, that the 15-day premium processing clock will start on April 15. (AILA Doc. No. 13031549) At the AILA Spring CLE conference on April 12, 2013, Donald Neufeld, Associate Director of the Service Center Operations (SCOPS) Directorate, informed the audience that data entry for non-premium processing cases will begin after the premium processing cases are entered. Data entry for non-premium cases will likely not be completed until sometime in May, and rejection notices for petitions not selected in the lottery will be sent out after that. Please note that when the cap was reached on the first day in 2008, USCIS did not complete data entry and issue receipt notices until late in May.

According to Leakied CIR plans

1. The Border Security "Trigger" The bill creates a pathway to citizenship for undocumented immigrants who meet certain qualifications, but applicants would need to undergo a 10-year probationary period before being eligible for a green card. The decade-long wait comes with another caveat: The federal government will need to meet certain border security benchmarks before any undocumented immigrants can receive a green card. The benchmarks? An operational border security plan, a completed border fence, a mandatory employment verification system across the country and a system to track exits at airports and seaports, according to reports in several news outlets. The border security plan would require surveillance of 100 percent of the U.S.-Mexico border and 90 percent effectiveness in border enforcement, The New York Times reported. If those goals are met, immigrants who completed the 10-year waiting period would be eligible to apply for a green card. 2. The Cut-Off Date Of the estimated 11 million undocumented immigrants in the U.S., hundreds of thousands may not be eligible for the path to citizenship being offered by the Senate, the AP reported on Friday. The bill requires that applicants prove they were in the country before December 31, 2011, the AP reported. That means anyone who arrived after that date would be excluded. There will be other requirements, too, like proving you have a clean criminal record and that you have enough job stability to stay off welfare. How the bill defines those things -- criminality and financial stability -- could decide the fate of thousands. 3. More Visas for Workers The majority of immigrants who receive legal permanent residence in the U.S. get their visas because of family ties. But the Senate bill will add a major new "merit-based" program, The New York Times reported on Thursday. Here's what will happen, according to the Times: Over a 10-year period, the government will seek to clear the backlog of 4.7 million immigrants waiting to come to the U.S. After that, the bill will create a new, merit-based visa program that will offer legal permanent residence based on work skills. At the same time, some family-based visas will be eliminated. Siblings of U.S. citizens would no longer be eligible for green cards, the documents that show legal permanent residence. The exact balance of family visas to employment visas in the Senate proposal isn't clear, but the bill would focus on bringing in more workers of all skill levels.

H-1b receipts I-797s are being issued

AILA members are beginning to receive premium processing receipts from the VSC for FY2014 H-1B petitions that state “The Vermont Service Center will adjudicate this case within 15 calendar days of the ‘received date’ set forth above.” Members are reminded that USCIS suspended premium processing for FY2014 H-1B petitions until April 15, 2013. The USCIS notice advises “While the Form I-797 receipt notice may indicate the date that the premium processing fee is received, the 15-day processing period set by 8 CFR 103.7(e)(2) will not begin until April 15, 2013.”

H-1B cap met. Lottery has begun.

The USCIS has reached the statutory H-1B cap of 65,000 for fiscal year 2014 (H-1B Regular Cap). USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption (H-1B Masters Cap). This is the first year since FY 2008 that the cap has been reached so quickly. It is truly a shame. USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing. CIR can not come soon enough

OHIO BMV TO BEGIN ISSUING TEMPORARY DRIVER LICENSES TO QUALIFIED DACA GRANTEES

OHIO BMV TO BEGIN ISSUING TEMPORARY DRIVER LICENSES TO QUALIFIED DACA GRANTEES COLUMBUS – Today the Ohio Bureau of Motor Vehicles (BMV) instructed the state’s Deputy Registrars to begin issuing temporary driver licenses to qualified Deferred Action for Childhood Arrivals (DACA) grantees, but only after first confirming applicants’ immigration documents via the U.S. Citizen and Immigration Services (USCIS) database. The extra security steps are designed to combat fraud or the use of counterfeit documents. BMV’s decision was established after reviewing guidance expressed by Ohio Attorney General Mike DeWine that DACA grantees are eligible for temporary driver licenses under Ohio law. The BMV’s instructions to Deputy Registrars will ensure consistent procedures are followed statewide when issuing the temporary licenses. Confirmation of applicants’ immigrant documents will be made via the federal government’s immigration database to verify their authenticity. Upon verification of applicants’ documents they will be issued a non-renewable/temporary license valid for the time

Statement from ICE about sequestration and detention

"As fiscal uncertainty remains over the continuing resolution and possible , ICE has reviewed its detained population to ensure detention levels stay within ICE’s current budget. Over the last week, ICE has reviewed several hundred cases and placed these individuals on methods of supervision less costly than detention. All of these individuals remain in removal proceedings. Priority for detention remains on serious criminal offenders and other individuals who pose a significant threat to public safety."

Tumblr creator, AOL co-founder, and others back 'virtual march' for immigration reform

Tumblr creator, AOL co-founder, and others back 'virtual march' for immigration reform As some of the most visibly successful American companies, startups and larger tech outfits enjoy favored status in political discourse. Finding "the next Steve Jobs" is a common talking point (it's showed up in, among other places, the 2012 State of the Union Address), and Obama has consistently called for better STEM (science, technology, engineering, and math) education to allow the US to maintain its technological prowess. At the same time, internet companies are pushing their own causes: Google has become a major player in Washington over the past year, and the SOPA protests of 2012 set a model for online company-backed activism. Now, as a new immigration plan is being workshopped in the Senate, parts of the tech community are putting their weight behind reform. Beng it here for entire article from Adi Robertson of The Verge http://www.theverge.com/2013/2/25/4027928/tech-sector-members-back-virtual-march-for-immigration-reform

Weather closes National Benefits Center and other USCIS office

Various USCIS offices including will be closed due to inclement weather including NBC, National Records Center, Kansas City and Wichita Field Offices will be closed today due to inclement weather as well as St. Louis office

Bad News from US Supreme Court. Padilla is NOT retroactive

The U.S. Supreme Court issued its long awaited decision in Chaidez v. U.S. today. Unfortunately, the Court held that Padilla does not apply retroactively. Click here for the decision.. More commentary to come http://www.supremecourt.gov/opinions/12pdf/11-820_j426.pdf

ICE has a quota and target numbers for arrests of all aliens

Unbelievable ICE emails about arresting aliens to make sure quotas are met. http://www.documentcloud.org/documents/603861-ice-documents.html

More atheltes with visa problems

Rafael Soriano has not yet reported to Nationals camp in Viera, Florida because of a work visa issue. That's the word from Soriano's agent, Scott Boras, via FOX Sports' Jon Morosi. Soriano should be able to get the problem resolved within the next couple of days. The 33-year-old right-hander inked a two-year, $28 million free agent contract with the Nationals this offseason and will serve as the team's ninth-inning man in 2013.

President Obama's uncle represented by one of my colleagues in Removal Hearings

A Boston judge today set a Dec. 3 deportation hearing for President Obama’s uncle, Onyango Obama, to determine whether he should be forced to return to his native Kenya. Immigration Judge Leonard I. Shapiro set the date during a brief hearing in a Boston immigration court. Obama joined a crowd of more than 30 immigrants from Pakistan, Guatemala, and Uganda who were facing hearings. After Shapiro’s ruling, Obama’s attorney, Scott Bratton, told reporters that his client’s long-term goal is to remain in the United States. “Everybody wants to stay in America,’’ said Bratton. “Hopefully, on Dec. 3, the case will be over.’’ Despite a deportation order issued against him 21 years ago, Obama, a 68-year-old liquor store manager, stayed in Massachusetts, living and working undetected until Framingham police arrested him in August 2011 on drunken driving charges. He later admitted to sufficient facts in the case and was sentenced to a year’s probation that ends in March. In November, the Board of Immigration Appeals granted him a new hearing based in part on his claim that his prior lawyer, now dead, was ineffective. His lawyers have also pointed out that he has lived in the United States for most of his life, since he arrived almost 50 years ago as a young man to attend an elite boys’ school in Cambridge. Congrats and good luck Scott!

The "Immigration Innovation Act of 2013" May Double H-1B Visa Cap

With all the talk of CIR, The "Immigration Innovation Act of 2013" May Double H-1B Visa Cap and will help "LEGAL" business based Immigration According to the ACT 1. Increase H-1B cap from 65,000 to 115,000 2. Establish a market-based H-1B escalator, so that the cap can adjust – up or down – to the demands of the economy (includes a 300,000 ceiling on the ability of the escalator to move) o If the cap is hit in the first 45 days when petitions may be filed, an additional 20,000 H-1B visas will be made available immediately. o If the cap is hit in the first 60 days when petitions may be filed, an additional 15,000 H-1B visas will be made available immediately. o If the cap is hit in the first 90 days when petitions may be filed, an additional 10,000 H-1B visas will be made available immediately. o If the cap is hit during the 185-day period ending on the 275th day on which petitions may be filed, and additional 5,000 H-1B will be made available immediately. 3. Uncap the existing U.S. advanced degree exemption (currently limited to 20,000 per year) 4. Authorize employment for dependent spouses of H-1B visa holders 5. Increase portability of high skilled foreign workers by: o Removing impediments and costs of changing employers; o Establishing a clear transition period for foreign workers as they change jobs; and, o Restoring visa revalidation for E, H, L, O, and P nonimmigrant visa categories Student Visas  Allow dual intent for foreign students at U.S. colleges and universities to provide the certainty they need to ensure their future in the United States Immigrant Visas and Green Cards  Enable the recapture of green card numbers that were approved by Congress in previous years but were not used  Exempt certain categories of persons from the employment-based green card cap: o Dependents of employment-based immigrant visa recipients o U.S. STEM advance degree holders o Persons with extraordinary ability o Outstanding professors and researchers  Provide for the roll-over of unused employment-based immigrant visa numbers to the following fiscal year so future visas are not lost due to bureaucratic delays  Eliminate annual per-country limits for employment based visa petitioners and adjust per-country caps for family-based immigrant visas U.S. STEM Education & Worker Retraining Initiative  Reform fees on H-1B visas and employment-based green cards; use money from these fees to fund a grant program to promote STEM education and worker retraining to be administered by the states

AILA highlights Pres. Obama's Immigration Reform Spech

From American Immigration Lawyer Association Today, President Obama called for common sense, comprehensive immigration reform, saying unequivocally that now is the time for action. He noted that most Americans agree that it is time to "fix the system that has been broken for way too long" and that immigration reform will strengthen our economy and our nation's future. AILA applauds the President's commitment to key principles at the heart of meaningful immigration reform, starting with an earned path to legal status that eventually could be converted to citizenship for the 11 million undocumented in our communities, and including: Eliminating the extremely long wait times for families to be reunited with loved ones with temporary and permanent reforms to the family-based immigration system. Treating same-sex families just like other families. Eliminating long wait times for employers and prospective employees by reducing backlogs and adding visas. Granting green cards to graduates in science, technology, engineering and math fields, creating a "startup visa" for job-creating entrepreneurs, and expanding opportunities for investors contributing to U.S. economic development. Expediting an opportunity for DREAMers to earn their citizenship. Investing in our immigration courts and providing greater protections for those least able to represent themselves. Providing broader discretion to judges to help keep families together when they face hardship. Imposing tough criminal penalties on notarios who prey on vulnerable immigrants.