Integrity Legal

The Path to Citizenship for Undocumented Aliens

Earlier this month President Barack Obama spoke with the President of Mexico about the issue of providing a path to citizenship for undocumented aliens in the United States. The call for comprehensive immigration reform has been brought up a great deal during the new President’s fledgling term. It is an issue that ignites passions on both sides of the aisle particularly in an economy environment in a state of decline. There is something to be said for the idea that an amnesty needs to be called to get undocumented aliens “out of the shadows,” even if a recession is threatening the jobs of American Citizens. The other side of the coin is the idea that illegal immigrants are exactly what their name implies: “illegal,” and should not in the end be rewarded for circumventing or outright violating Immigration regulations.

Many believe that the notion of America as a nation of immigrants and a melting pot of different cultures should compel the US government to make some sort of provision for granting some sort of legal status to currently undocumented aliens. Admittedly, this argument holds some merit particularly where the undocumented alien is working in the US and is not a burden to the state.

Family Immigration and Visas for Same Sex Couples

Concurrently with Comprehensive Immigration Reform there is another bill in the US Congress seeking to give another form of prospective Immigrants legal status in the United States that they do not currently retain. The Uniting of American Families Act (UAFA) seeks to add the term “permanent partner,” to the list of those eligible for US Family Immigration Benefits under US Immigration regulations.

Under the Defense of Marriage Act a marriage is recognized as a legal union between a man and a woman. Therefore, this act effectively bars same sex couples from receiving US federal recognition for a marriage (including in US states where same sex marriages and civil unions are legal). The upshot of this legislation is that it precludes same sex couples from obtaining US Immigration benefits if one of the partners is a foreign national.  The addition of  the new term “permanent partner,”  to the American Immigration and Nationality Act would allow same sex marriage and family visas without creating a legal conflict with the Defense of Marriage Act.

A New Category of Visa to be created under the UAFA?

Some lawyers and legal scholars have speculated as to what type of family visa a permanent partner would be entitled to. The term itself would seem to rule out the K1 visa because it is a fiancee visa and the use of the word “permanent” contradicts the idea of a fiance visa. At the same time, because the term specifically does not connote “marriage,” it would seem likely that a us marriage visa would be out of the question. Therefore, a “permanent partner” visa will likely be a separate category unto itself that is distinct from other family visa categories. It remains to be seen what the burden of proof will be for obtaining a “permanent partner” visa, but the fact that marriage will not be a legally recognized element for proving the relationship (at least with the Defense of Marriage Act on the books), it is likely that a large amount of evidence will be needed to prove up the bona fides of a permanent partnership.

Both Comprehensive Immigration Reform and the UAFA are necessary steps to dealing with the practical effect of immigration regulations that cause certain groups to “fall through the cracks,” of American Immigration law. However the debate on these issues is resolved, a modicum of uniformity and resolution of these matters is necessary.

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