Integrity Legal

In recent months, both Thai and American immigration systems have been in a state of flux. In some ways the systems have become more streamlined, but in other ways it is becoming more difficult to navigate these systems. The Trump administration has been implementing policies which make immigration to the United States more difficult, as a practical matter. Recently, these prerogatives are starting to have an impact on the ground in Thailand, Laos, Cambodia, and ASEAN as a whole. For example, Myanmar has been placed upon a list of countries banned from traveling to the USA. As a result, Myanmar nationals will not be able to enter the USA, nor will such nationals be granted visas to travel to the USA. If and/or when this ban will be lifted remains to be seen.

Meanwhile, there has been a great deal of discussion surrounding the administration’s implementation of new public charge rules in relations to immigrant visas for the USA. It is clear that there will be a direct impact upon those who are seeking family based immigrant and non-immigrant visas to the United States. For example, those seeking a CR-1 visa or an IR-1 visa will need to deal with the DS-5540 Public Charge Questionnaire when undertaking Consular Processing of their cases at the US Embassy or US Consulate in the jurisdiction in which the applicants reside. Concurrently, it is also clear that those who travel to the United States on a K-1 visa or a K-3 visa will need to deal with the I-944 form as part of the implementation of public charge adjudication during adjustment of status to lawful permanent residence (a.k.a. “Green Card” status”).

A question posed to this blogger recently: When seeking a K visa abroad, will I need to fill out a DS-5540? The answer to this question is not overly clear at first glance. This blogger did some research and came upon the following information in the Foreign Affairs Manual:

9 FAM 302.8-2(B)(4) (U) Applying INA 212(a)(4) to Nonimmigrants

d. (U) Alien Seeking Admission as K Nonimmigrants: K nonimmigrants and their petitioners are not permitted to complete form I-864. You may request a K applicant complete Form DS-5540 to assist in evaluating likelihood of becoming a public charge. Note that K applicants will again be assessed under the public charge ineligibility by USCIS at the time of adjustment of status where the K nonimmigrant seeking adjustment of status will be required to submit a Form I-864.

It is clear that non-immigrant visas are not the same thing as immigrant visas, but K visas are an odd hybrid creature in the immigration world and their posture in these matters can be somewhat fluid. Note that the FAM states the adjudicating officer “may request a K applicant complete Form DS-5540,” but it is not required. Meanwhile, it goes on to note that the applicant is not allowed to file an I-864 and that the issue of public charge we be adjudicated again at the adjustment of status phase of the process. Is this wording designed to allow American Embassies and Consulates leeway to not require K visa applicants to file a DS-5540? Perhaps, the practical implications of the public charge rule at the US Embassy in Thailand, Laos, and Cambodia remain to be personally witnessed by this blogger, but rest assured as soon a there is further clarification we will follow up on those developments.

Tags: Adjustment of Status, Affidavit of Support, American Visa Thailand, CR1 Visa Cambodia, CR1 Visa Laos, CR1 Visa Thailand, DS-5540, FAM, Foreign Affairs Manual, Green Card, I-134, I-864, I-944, IR1 Visa Cambodia, IR1 Visa Laos, IR1 Visa Thailand, K1 Visa Cambodia, K1 Visa Laos, K1 Visa Myanmar, K1 Visa Thailand, K3 Visa Cambodia, K3 Visa Laos, K3 Visa Thailand, Public Charge, public charge rule, US Visa Cambodia, US Visa Laos, US Visa Myanmar, US Visa Thailand, USA Visa Thailand
Posted in US Visa and Immigration | No Comments »

It recently came to the attention of the administration of this web log that the subject of the Value Added Tax (VAT) has been a hot news item in Thailand in recent days as the current Prime Minister was noted speculating about the advantages to be gained by the Thai government if the VAT were to be raised one percentage point from the current level of 7% to 8%. To quote directly from The Nation’s website:

Prime Minister Prayut Chan-o-cha has floated the idea of raising the value-added tax (VAT) rate by one percentage point from the current 7 per cent to 8 per cent to raise an additional Bt100 billion in annual tax revenues to finance various public projects.

Meanwhile, it became unclear from further reports whether the Prime Minister was simply expounding upon the advantages to be gained by an increase in VAT or if a change of policy was being discussed. To quote from the official website of the Bangkok Post:

Finance Minister Apisak Tantivorawong said the government plans to keep VAT unchanged at 7% for another year when the previous extension of the last period for keeping VAT at 7% ends on Sept 30. VAT would not increase during the term of this government, he added.

Setting aside the issue of what the Prime Minister’s intentions were with respect to his comments regarding VAT increase (and it would appear from this writer’s perspective that he was indeed simply commenting upon the benefits to be garnered by the government should VAT be increased to 8%) it appears that at least for the foreseeable future the VAT in Thailand will not be increased.

For those who have had experience doing business in Thailand VAT is known as a fact of business-life. In fact, those foreign nationals wishing to setup a Company in Thailand are well advised to note that in order to get a Thai work permit associated with such companies the relevant corporate entity oftentimes must be registered for VAT. Therefore, unlike Thai businesses which may or may not require VAT registration, foreign companies in Thailand will often be VAT registered and therefore an increase in VAT will have a substantial impact upon such enterprises.

Meanwhile, in the aftermath of recent changes to American policy with respect to US Immigration it appears that a number of new Immigration Judges have been impaneled to deal with the staggering backlog of United States Immigration cases in the Immigration Courts. To quote directly from Reuters News Service:

The Department of Justice is deploying 50 judges to immigration detention facilities across the United States, according to two sources and a letter seen by Reuters and sent to judges on Thursday. The department is also considering asking judges to sit from 6 a.m. to 10 p.m., split between two rotating shifts, to adjudicate more cases, the sources said. A notice about shift times was not included in the letter.

Clearly, the new Administration in the USA is stringently enforcing immigration laws as evidenced by the recent stories of increased deportations, travel bans, and heightened scrutiny of immigrants (both Green Card holders and other immigrants) at ports of entry in the USA. It seems rather reasonable to infer that US Immigration matters are likely to be more difficult and time consuming to process in coming weeks and months.

Tags: Green Card, Thai Company Registration, Thai VAT, Thai Work Permit, Thailand Business Registration, Thailand VAT, Thailand Work Permit, US Immigration, US Immigration Court, US Immigration Judge, Value Added Tax, VAT
Posted in Thailand Business, US Visa and Immigration | No Comments »

It recently came to this blogger’s attention that the United States Consulate-General in Chiang Mai will be suspending services from September 12, 2016. It may be best to quote directly from the US Consulate’s website:

Except for U.S. citizen emergencies, consular services at the U.S. Consulate General in Chiang Mai will be suspended from September 12, 2016 to November 1, 2016, due to necessary renovations to the Consular Section…All nonimmigrant visa (NIV) applicants who intend to travel during this period should make appointments with the U.S. Embassy in Bangkok…The American Citizen Services (ACS) Unit will remain available by email and phone for emergency U.S. citizen services such as death and welfare/whereabouts cases; and we will continue to accept voter registration, absentee ballot requests, and absentee ballots.  Also, please note that the ACS Unit will conduct several U.S. citizen outreach events in and around Chiang Mai during this period…

Those wishing to learn more are well advised to click the link above.

Those seeking non-immigrant visas such as US Tourist visas and US student visas will, at least for the time being, be required to interview for such travel documents in Bangkok. It should be noted that this announcement has no impact upon those seeking immigrant visas such as the IR-1 visa or the CR-1 visa nor does it change the current processing protocols of the K-1 fiancee visa as although such fiance visas are considered non-immigrant visas they are processed in much the same manner as immigrant visas. As dual intent visas, holders of the K-1 visa may enter the United States in non-immigrant status with the intention of remaining and thereby use the adjustment of status process in order to convert into lawful permanent resident status (aka Green Card holder status) once in the USA. All of the aforementioned visa categories are initially adjudicated by the United States Citizenship and Immigration Service (USCIS), a division of the Department of Homeland Security; before undergoing further Consular Processing at the United States Embassy in Bangkok, under the jurisdiction of the U.S. Department of State.

Notwithstanding the continuation of regular immigration services for those wishing to permanently move to the USA. It would appear that this situation may cause inconvenience for those in the North of Thailand seeking American Citizen Services such as passport renewal, notarization, and issuance of Consular Reports of Birth Abroad (CRBA). Other than occasional Consular outreach, many of these services will apparently need to be obtained from the Post in Bangkok during this renovation period.

Tags: Adjustment of Status, American Citizen Services, American Consulate Chiang Mai, American Embassy Thailand, consular report of birth abroad, dual intent visa, Green Card, Lawful Permanent Resident, United States Citizenship and Immigration Service, United States Consulate General Chiang Mai, United States Embassy in Bangkok, US Consulate Chiang Mai, us embassy thailand, US student visas, US Tourist visas, USCIS
Posted in US Consulate Chiang Mai | No Comments »

In a recently published article on CNN’s official website it was noted that based upon published data from 2015 the number of renunciations of United States Citizenship appears to be rising:

The number of citizens and long-term residents cutting their official ties to Uncle Sam jumped more than 20% last year to 4,279, according to a CNNMoney analysis of the latest government data.

First, let’s take note of a nuanced facet of this issue that the article quoted above does not delve into: Lawful Permanent Residence. The article used figures which showed the number of those renouncing U.S. Citizenship along with those surrendering their green card. These are two very different legal issues. The renunciation of one’s citizenship results in an inability to obtain a United States passport, enjoy all of the legal benefits of U.S. law, and the an inability to obtain various services at United States Embassies and Consulates abroad, to name just a few things. Lawful Permanent Residents of the USA, aka Green Card holders, presumably have an underlying nationality. Many of those who surrender their green card do so in connection with a return to their native country. The motivations behind citizenship renunciation and green card surrender are often very different.

To some, this renunciation trend is rather alarming. For those Americans who have lived abroad for a significant period of time the information above is unlikely to be a surprise. With recent changes to the laws regarding the reporting of financial information pertaining to Americans residing abroad and the fact that American citizens are supposed to pay taxes on their world wide income the recent increase in renunciations of United States Citizenship does not seem as bizarre as it may seem at first glance as the aforementioned article goes on to elucidate:

Many of those severing links are Americans living overseas who are tired of dealing with complicated tax paperwork, a headache that has worsened since new regulations came into effect…Unlike most other countries, the U.S. taxes its citizens on all income, no matter where it’s earned or where they live. For Americans living abroad, that results in a mountain of paperwork so complex that they are often forced to seek professional help…

To be clear, renunciation of United States citizenship is a very serious matter. In this blogger’s personal opinion one should not renounce one’s citizenship unless one has taken a significant period of time to seriously contemplate such an endeavor. In many cases, renunciation of US citizenship could result in new unforeseen tax liability. Meanwhile there are those who are under the impression that they must renounce their citizenship when in fact a renunciation is not required.

If one is thinking of giving up their US citizenship simply for reasons related to taxation, then prior consultation with a tax expert would be wise. Those thinking generally about renouncing their United States Citizenship should consult with a legal professional prior to making any irrevocable decisions as renunciation of one’s citizenship could have dire consequences.

Tags: Green Card, Lawful Permanent Residence, Renounce US Citizenship, US Citizenship, US Citizenship Renunciation, US Taxes
Posted in US Taxes | No Comments »

Millions of people around the world wish to take up residence in the United States of America and often wish to become American Citizens. However, it would appear that some Americans are cutting ties with the USA and renouncing their United States Citizenship. Names of all those Americans who renounce their United States Citizenship are recorded and published in the United States Federal Register. These lists are generally not particularly newsworthy. However, in the most recent quarterly publication regarding US Citizenship renunciation it would appear that the number of Americans renouncing their United States Citizenship has jumped by over 60% when compared to previous quarters. In the last quarter 1,131 people renounced their United States Citizenship. This number is a large increase from the previous quarter which saw only 679 renunciation. Although, when compared against the same quarter of the previous year which saw only 188 renunciations the 1,811 figure is rather staggering. Is this simply a one-time anomaly or is this the sign of a growing trend?

While some are speculating as to what this trend means in a broad socio-economic context, I feel that some analysis is necessary to put some perspective on these numbers. A reader looking at the Federal Register’s official posting regarding these numbers will likely note the following information:

For purposes of this listing, long-term residents, as defined in section 877(e)(2), are treated as if they were citizens of the United States who lost citizenship.

The casual reader may wonder: what does this mean? Well to quote directly from the Cornell Law School’s website which lists sections 877 (e)(1) and 877(e)(2):

(1) In general

Any long-term resident of the United States who ceases to be a lawful permanent resident of the United States (within the meaning of section 7701 (b)(6)) shall be treated for purposes of this section and sections 2107, 2501, and 6039G in the same manner as if such resident were a citizen of the United States who lost United States citizenship on the date of such cessation or commencement.

Therefore, based upon the information provided by the Federal Register and the United States statutes noted above some of those listed in the Federal Register as those renouncing their Citizenship could be United States Lawful Permanent Residents (colloquially referred to as “Green Card” holders) who have chosen to give up their permanent resident status. This explanation probably does not account for all of the “Citizenship renunciations” listed in the recent Federal Register publication, but it may account for some of these numbers. In any event, the number of those expatriating from the United States remains high compared to previous points in American history. The question remains, why are higher numbers of Americans renouncing their citizenship?

There are some who contend that the recent spike in citizenship renunciation may stem from American policy regarding taxation of United States Citizens living abroad. American Citizens (as well as lawful permanent residents) are taxed on their worldwide income, regardless of where they physically reside. This situation is in stark contrast to the tax policies of virtually every other country in the world as most countries only tax those of their citizenry who reside in their country. There are exceptions to the previous statement as issues such as domicile play into many countries’ foreign taxation policies. Many feel that the recent increases in the number of renunciations is driven by Americans with high foreign derived incomes seeking to rid themselves of the need to pay American taxes. In a major story from last year it was noted that one of the founders of Facebook had renounced his United States Citizenship before the IPO of that company’s stock. It should be noted that some argue that his tax obligations at that time may not have actually decreased as a result of his decision to give up his citizenship (due to American tax laws such as the so-called “Expatriation Tax” or “Exit Tax”), although his future tax liabilities may be reduced as a result of that decision. Perhaps more Americans are taking the (somewhat drastic) step of renouncing their citizenship in order to save some money from the tax man. Without knowing each former-American’s motivations for renouncing United States Citizenship we are left to speculate.

There may be another impetus behind the recent increase in the number of Americans renouncing their Citizenship: the FATCA. The Foreign Account Tax Compliance Act (FATCA) compels financial institutions outside of the United States to report information about accounts maintained by American Citizens or lawful permanent residents to the Internal Revenue Service. Furthermore, foreign financial institutions are also required to report on accounts maintained by foreign corporations in which Americans or Lawful Permanent Residents own a significant interest. The FATCA’s implementation has been pushed back until July of 2014. Could the looming specter of the FATCA be the reason for the recent uptick in American’s renouncing their citizenship? One of the many upshots of the FATCA is the fact that the regulatory requirements imposed by the American government on foreign banking and financial institutions can be rather burdensome. One way that these foreign institutions can relieve themselves of these burdens is by refusing to accept American customers. If there are no Americans holding accounts at a given foreign bank, then the bank does not necessarily have to comply with the provisions of the FATCA. This has lead to a situation where more and more overseas banks are refusing to provide services to Americans living and working abroad. By renouncing United States Citizenship and naturalizing to the Citizenship of another country a former American could bank in much the same manner as other foreign nationals.

The decision to renounce one’s U.S. Citizenship is a significant one and should not me made lightly. There are many benefits to being an American Citizen so those thinking of renouncing their Citizenship should review not only their tax situation, but also the intangible and tangible benefits of their American citizenship (including the US Passport). Will this trend continue? It remains to be seen, but there are many who feel that as American oversight of global taxation matters becomes more ubiquitous there will be more American’s who question the value of their citizenship.

–Benjamin W. Hart is an American attorney who resides in Bangkok, Thailand.

For related information please see: Citizenship Renunciation.

Tags: American Citizenship, American Citizenship Renunciation, American Passport, American Tax, American Taxation, Exit Tax, Expatriation Tax, FATCA, FATCA 2014, Federal Register, Foreign Account Tax Compliance Act, Green Card, Internal Revenue Service, Lawful Permanent Resident, long term resident, Renounce American Citizenship, Renounce US Citizenship, Renouncing American Citizenship, Renouncing US Citizenship, United States Citizenship, United States Federal Register, US Citizenship, US Citizenship Renunciation, us passport, US Tax, US Taxation
Posted in US Citizenship, US Taxes | No Comments »

It recently came to this blogger’s attention that the Secretary of the Department of Homeland Security (DHS) has issued a statement regarding the implementation of policies regarding adjudication of immigration petitions for same-sex bi-national married couples. To quote directly from the official website of DHS:

“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.  To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

This statement is a significant moment in the long fight for equal immigration rights for same-sex couples. In order to provide further information regarding these developments the DHS has posted some frequently asked questions on the same page as the aforementioned quotation. These FAQ’s are quoted below:

Q1:  I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national.  Can I now sponsor my spouse for a family-based immigrant visa?

A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Clearly, the United States Citizen or Lawful Permanent Resident same sex spouse of a foreign national can now submit an I-130 petition for Lawful Permanent Residence (also known as “Green Card” status) for their husband or wife. In fact, it would appear that a same-sex couple in Florida was recently granted immigration benefits for the same-sex spouse. This would especially be true in a case where the couple not only was married in State recognizing same-sex marriage, but also resides in that same State or another of the 13 States which recognize such unions. An issue which is, as of yet, not so clearly delineated hinges upon a situation in which a same-sex married couple has married in a State which recognizes same-sex marriage (and performs them), but resides in a State which does not recognize such unions. To shed further light upon this issue it is necessary to quote again from the same DHS webpage, quoted above, regarding this issue:

Q2:  My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not.  Can I file an immigrant visa petition for my spouse?

A2: Yes, you can file the petition.  In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

For those wishing to visit the official website of the United States Citizenship and Immigration Service (USCIS) to learn more please click HERE.

For those unfamiliar with the recent Supreme Court decision striking down section 3 of the Defense of Marriage Act (DOMA) it should be pointed out that the Supreme Court’s decision did not impact section 2 of DOMA which reads as follows:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Therefore, notwithstanding the fact that there are some who argue that section 2 of DOMA violates the provisions of the Full Faith and Credit Clause of the United States Constitution, no Court ruling nor Act of Congress has repealed section 2 of DOMA and, in the words of the DHS website itself, in those “fact-specific” situations in which Section 2 of DOMA may be relevant the provisions of Section 2 could prove detrimental to a same-sex bi-national couple. That being said, according to the DHS website, a petition could still be filed and it would be adjudicated accordingly.

One final point to ponder on this issue is the K-1 visa. Under current United States Immigration law it is possible for an American Citizen to apply for a Fiance Visa, also known as the K-1 visa, for a foreign fiance residing abroad, so long as the couple intends to marry in the United States within 90 days of the foreign fiance’s arrival (other regulations apply to K-1 visa holders, but for the purposes of this analysis they are not necessarily relevant). If a same-sex couple, who are not yet legally married, wishes to obtain a K-1 visa based upon their intention to wed in the United States, then it could be inferred from the DHS Secretary’s statement that they might be adjudicated in the same manner as the same petition for a different-sex couple. However, this should not be viewed as a foregone conclusion because the statements quoted above only pertain specifically to couples who are already married. Neither the Court, nor the DHS, have specifically dealt with the question of those same-sex couples who wish to seek a K1 visa based upon an intention to marry in the USA. It could be inferred from the Court’s opinion in United States v. Windsor that those same-sex couples with the intention to marry in a jurisdiction where same-sex unions are recognized should be granted the same treatment as those different-sex couples in similar circumstances; but the issue has yet to be clearly adjudicated and therefore no completely clear answer arises.

Meanwhile, one significant question remains: based upon the above information how will USCIS adjudicate K-1 visa applications for same-sex couples who wish to travel to the United States to marry in a State which recognizes same-sex marriage, but reside in a State which does not? Hopefully the answer to this question will come soon. Until then it would appear that although DHS clearly intends to adjudicate same-sex married couples’ petitions for immigration benefits in the same way as different-sex couples; it remains to be seen how same sex fiances will be treated in the eyes of U.S. Immigration law.

For information on immigrant visas please see: CR-1 Visa or  IR-1 Visa.

Tags: CR-1 Visa, Defense of Marriage Act, Department of Homeland Security, DHS, DOMA, DOMA Section 2, DOMA Section 3, Fiance Visa, Full Faith and Credit Clause, gay fiance, gay marriage, Green Card, I-130, immigration law, immigration petition, IR-1 Visa, K-1 Visa, K-1 visa application, K1 Visa, Lawful Permanent Residence, LGBT fiance, LGBT marriage, President Obama, same sex fiance, same sex fiancee, Same Sex Immigration, Same Sex Marriage, same sex spouse, same sex visa, same-sex bi-national married couples, same-sex legally married couples, U.S. Citizenship and Immigration Services, USCIS
Posted in same sex visa | No Comments »

After the landmark decision handed down by the United States Supreme Court in which the Court held that section 3 of the Defense of Marriage Act (DOMA) violates the 5th Amendment of the United States Constitution there has been increasing speculation regarding how this will impact those seeking United States Immigration benefits such as US visas and Lawful Permanent Residence (Green Card status). It recently came to this blogger’s attention that the Secretary of the Department of Homeland Security, Janet Napolitano, recently commented on this issue, to quote her comments directly from the DHS official website:

“I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits.  I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

Clearly it appears that DHS is in the process of implementing new policies which would comport with the Court’s decision. This is likely to have a tremendous impact upon same-sex bi-national couples. Before the Court handed down their decision it was not possible for most gay, lesbian, bi-sexual, or transgender (LGBT) couples to obtain immigration benefits based upon their marital relationship. Now that the Supreme Court has ruled that same sex marriages will receive the same recognition as different-sex mariages in the eyes of federal law the door is now open for LGBT couples to apply for benefits such as a “Green Card” or an immigrant visa (IR-1, CR-1). It may also be possible for same sex bi-national couples who are not yet married to apply for a K-1 fiance visa based upon the couple’s intention to travel to the United States to marry in one of those States (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) that recognize same-sex marriage. That being stated, it is likely that it may take some time to implement proper policies to reflect the new legal reality, but the time is right for same sex bi-national couples to begin researching their options with regard to United States immigration as it appears likely that one day soon a same sex spouse of an American Citizen will receive an immigrant visa based upon the couple’s marital status.

For related information please see: US Visa Thailand or K1 Visa Thailand.

Tags: CR-1 Visa, Defense of Marriage Act, DOMA, gay marriage, gay visa, Green Card, ImmigrantVisa, K-1 Visa, K-1 Visa Thailand, K1 Visa, K1 Visa Thailand, lgbt visa, Same Sex Marriage, same sex visa, US Visa, US Visa Thailand
Posted in same sex visa | No Comments »

In a landmark case, UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL., the United States Supreme Court in a 5-4 decision has ruled that Section 3 of the so-called Defense of Marriage Act (DOMA) is unconstitutional. For those unfamiliar with this issue, section 3 of DOMA reads as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

The upshot of this legislation is that up until the Supreme Court handed down this ruling same sex couples have not been able to receive the same federal benefits as different-sex couples. In the case at hand, a widow of a same sex spouse who was legally married and residing in the State of New York (one of 12 States which recognize same sex marriage) was barred from receiving an estate tax refund because the federal government, citing section 3 of DOMA, did not recognize the couple’s marriage. To quote directly from the majority opinion of the Supreme Court:

DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment…By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect…By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U.S. 528, 534–535. DOMA cannot survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages.

In order to shed further light upon this decision it is necessary to quote the Fifth Amendment of the United States Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As the majority of the Court held that “DOMA violates basic due process and equal protection principles applicable to the Federal Government” pursuant to the Fifth Amendment it appears that from this point on those same sex couples legally married in a State which recognizes same sex marriage (or possibly in international jurisdictions which legalize same sex marriage as the parties in the Windsor case were actually married in Canada) will receive federal recognition of those marriages and be able to enjoy federal benefits arising from their marital status. The question of interstate recognition of same sex marriage remains a bit murky as there has yet to be a decisive ruling regarding this issue, but the issue of federal recognition of a same sex marriage would appear to be fully resolved.

How Might This Decision Impact The United States Immigration Process?

In the past, same sex bi-national couples were unable to receive immigration benefits such as a Green Card or a K-1 visa (fiance visa) because The Defense of Marriage Act (DOMA) precluded federal recognition of same sex marriage. This preclusion even applied to those same sex bi-national couples who were married in one of the 12 States which recognize same sex marriage (some could argue that there are now 13 States which recognize same sex marriage since the Supreme Court in another decision handed down at roughly the same time as the Windsor decision effectively leaves the door open for California to legalize same sex marriages). As a result of the federal government failing to recognize same sex marriage agencies such as the United States Citizenship and Immigration Service (USCIS) could not grant immigration benefits such as lawful permanent residence (Green Card status) to the same sex spouse of an American Citizen or lawful permanent resident solely based upon the couple’s marrriage. Now, that would appear to no longer be the case, although the Court did not explicitly rule upon the issue of immigration benefits for same sex couples the fact that the Court struck down section 3 of DOMA means that a same sex marriage must be accorded the same federal recognition as a different-sex marriage. Therefore, it is logical to surmise that the Court’s decision should allow same sex couples to undergo adjudication for immigration benefits such as visas and Green Cards in a manner similar to different-sex couples. There are likely to be complications as federal regulators implement policies which comport with the Court’s decision, but one thing is clear: the Windsor decision is a major victory for same sex bi-national couples.

For related information please see: Equal Protection or same sex marriage.

Tags: Defense of Marriage Act, DOMA, equal protection, Fiance Visa, Fifth Amendment, Green Card, K-1 Visa, Same Sex Marriage, same sex spouse, same sex visa, United States Citizenship and Immigration Service, UNITED STATES v. WINDSOR, USCIS
Posted in same sex visa | No Comments »

It recently came to this blogger’s attention that the Department of Homeland Security (DHS) may be poised to begin placing holds on some deportations. In order to provide further insight it is necessary to quote directly from the website of The Washington Times, WashingtonTimes.com:

The Homeland Security Department said Thursday it will halt deportation proceedings on a case-by-case basis against illegal immigrants who meet certain criteria such as attending school, having family in the military or are primarily responsible for other family members’ care. The move, announced in letters to Congress, won immediate praise from Hispanic activists and Democrats who had chided President Obama for months for the pace of deportations and had argued he had authority to exempt broad swaths of illegal immigrants from deportation…

The administration of this web log strongly encourages readers to click upon the relevant hyperlinks above to read this article in detail.

Although this blogger has been reluctant to support blanket amnesty per se, especially for those who have entered the United States illegally; there are often unique and extenuating circumstances which require adjudication in order to equitably administer American immigration law and regulation pursuant to legislative and executive plenary power. It remains to be seen how this policy will be practically implemented.

In news related to the struggle for LGBT Equality, it recently came to this blogger’s attention that the federal delegation from the sovereign State of New York may be more supportive of DOMA repeal since a Congressional Representative from that State was recently noted for comments on this issue. In an effort to provide further insight it is necessary to quote directly from the website Towleroad.com:

After waiting for New York State to legalize gay marriage, Democratic Rep. Bill Owens now says he supports the repeal of the Defense of Marriage Act that prohibits federal recognition of same-sex marriage. “I indicated I would not become a co-sponsor until New York took action,” said Owens, who represents the Empire State’s 23rd Congressional district. “Once they did that, I felt I had an obligation to the citizens in the state to make sure they weren’t adversely impeded by federal law.” Owens continued, “I think that people should have the freedom to make those kinds of decisions…”

The administration of this web log asks readers to click on the hyperlinks above to read this article in detail.

For those who are unaware of the evolving nature of this issue it should be noted that the provisions of the so-called “Defense of Marriage Act” (DOMA) preclude federal recognition of same sex marriage. This federal non-recognition is enforced even where one of the sovereign American States has legalized and/or solemnized the underlying same sex marriage. There are some who would argue that this activity violates the Full Faith and Credit Clause of the United States Constitution while others could argue that such discrimination violates the Equal Protection Clause. In any case, the result in an immigration context is that same sex bi-national couples (even those who have entered into a same sex marriage in a US State) cannot receive the same visa benefits (such as the CR-1 visa, IR-1 visa, or K-1 visa)  as their different-sex counterparts. Some federal legislators, such as New York delegation member Representative Jerrold Nadler, have attempted to remedy this problem through introduction of bills such as the Uniting American Families Act (UAFA: to address the specific issue of discrimination in an immigration context) and the Respect For Marriage Act (RFMA: a proposal which would accord federal “certainty” to State licensed same sex marriages). However, it remains to be seen whether such legislation will ultimately see passage.

In news related to the aforementioned issues it also came to this blogger’s attention that further “mainstream media” attention is being focused upon the case of the same sex bi-national couple who were married in the Commonwealth of Massachusetts, but face the prospect of separation due to the fact that the American government may remove the foreign spouse since their marriage is not recognized pursuant to the provisions of DOMA. In an effort to provide further detail this blogger is compelled to quote directly from the official website of The Washington Post, WashingtonPost.com:

Mr. Makk’s case illustrates the profound injustices meted out by DOMA, which was passed in 1996. The Obama administration this year denounced the Clinton-era law as unconstitutional because it deprives same-sex couples equal protection of the law. In April, Attorney General Eric H. Holder Jr. put on hold the deportation of a British man who has lived in the United States since 1996 but who never obtained a green card or citizenship. The man, Paul Wilson Dorman, has been in a committed same-sex relationship for 15 years and entered into a civil union with his partner, a U.S. citizen, in 2009. Mr. Holder asked an immigration court to determine whether Mr. Dorman should be considered a “spouse” under New Jersey law and thus entitled to stay in the country. Mr. Makk’s deportation should also be put on hold, as should those involving anyone in legally recognized same-sex relationships whose only infraction involves immigration status…

The administration encourages readers to click upon the hyperlinks noted above to read this article in detail as this situation is poignant indeed.

Although this blogger can at times get caught up in the rather academic details of the debate on federal recognition of same sex marriage readers should be aware that this issue has a truly human context since couples like the one noted above could have their personal lives substantially disrupted as a result of federal policy with respect to same sex couples. There is some speculation that this matter may ultimately see resolution in the US Courts, but until such time as a final decision is made on the matter same sex couples and the Greater LGBT community in America are left to hope that their federal legislature will pass legislation akin to the RFMA or the UAFA. Perhaps in the meantime officers in the American immigration system can utilize their statutory authority and plenary powers to provide equitable relief to those who find themselves facing the prospect of being separated from their loved ones due to questionably Constitutional law.

For information pertaining to legal services in Southeast Asia please see: Legal.

Tags: American Constitution, Attorney General Eric H. Holder Jr., certainty, Citizenship, Commonwealth of Massachusetts, CR-1 Visa, CR1 Visa, Defense of Marriage Act, Department of Homeland Security, DHS, DOMA, DOMA repeal, equal protection, equal protection clause, Full Faith and Credit Clause, gay marriage, Green Card, Homeland Security Department, Illegal Immigrants, IR-1 Visa, IR1 Visa, K-1 Visa, K1 Visa, legally recognized same-sex relationships, New York 23rd Congressional district, New York State, President Obama, Representative Jerrold Nadler, Respect for Marriage Act, Same Sex Marriage, same-sex relationships, United States Constitution, Uniting American Families Act
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It recently came to this blogger’s attention that multiple media outlets are reporting upon the recent Senate hearings discussing the so-called “Defense of Marriage Act” (DOMA). In order to provide sufficient insight it is necessary to quote directly from the official website of Lez Get Real, LezGetReal.com:

Al Franken looks bored. That is not surprising. Committee hearings are rather boring. The Senate Judiciary Committee has been hearing evidence both for and against repealing the Defense of Marriage Act. While the hearing heard testimony about the financial and symbolic damage that DOMA does to couples, it is unlikely that the Respect for Marriage Act will get anywhere in the House where the Republicans will ignore it. Heading up the push for the RFMA is Vermont Senator Patrick Leahy. When DOMA first came in, Senator Leahy voted for it, but a decade and a half later, he has changed his mind and is pushing to end it. He has also hailed the decision by President Barack Obama to support the repeal of DOMA…

This blogger asks readers to click upon the hyperlinks noted above to learn more from this interesting story. This blogger must admit that he was rather pleasantly surprised by the questioning posed by Senator Al Franken which can be viewed by clicking on the relevant links above.

Those unfamiliar with the currently unfolding debate involving DOMA should note that that legislation in its present form precludes those in a same sex marriage (even one solemnized and/or legalized by one of the sovereign American States) from receiving similar benefits compared to those in a different-sex marriage. For example, a same sex bi-national couple is unable to obtain visa benefits such as the K-1 visa, the IR-1 visa, or the CR-1 visa in the same manner as their different-sex counterparts. Meanwhile there are many other federal benefits that are not generally accorded to same sex partners. In order to provide further elucidation on these points it is necessary to quote directly from The New Civil Rights Movement website, TheNewCivilRightsMovement.com:

Immigration for Bi-​National Couples. Nearly 26,000 same-​sex couples in the United States are bi-​national couples who could be forced to separate because they cannot participate in green-​card and accelerated citizenship mechanisms offered to non-​citizen spouses of American citizens…There are 581,300 same-​sex couples in the United States, including 50,000 to 80,000 legally married same-​sex and another 85,000 who are in civil unions or registered domestic partnerships. Approximately 20% of same-​sex couples are raising nearly 250,000 children, and DOMA deprives them of the legal and social protections being married offers. Additionally, almost one-​fourth of same-​sex partners are people of color, over 7% of individuals in same-​sex couples are veterans of the U.S. armed forces, and same-​sex couples live in every congressional district and in almost every county in the United States…

The administration of this blog asks readers to click through the hyperlinks noted above to read this very insightful article in full.

It should be noted that in the United States House of Representatives legislation such as the Uniting American Families Act (UAFA) and the Respect for Marriage Act (RFMA) have been introduced by Representative Jerrold Nadler in order to provide some sort of remedy to the current predicament faced by LGBT couples. As noted in the first excerpt quoted there is pessimism regarding the reaction of Republican legislators to the aforementioned proposed legislation. That stated, there are significant States’ Rights implications of these issues especially in light of the language regarding Full Faith and Credit in the Full Faith and Credit Clause of the United States Constitution. Therefore, speculation regarding willful ignorance of issues pertaining to DOMA and the RFMA by the United States House of Representative may ultimately prove unfounded although vigilance may still be necessary in the continuing struggle for LGBT Equality.

For information pertaining to legal services in Southeast Asia please see: Legal.

Tags: Citizenship, CR-1 Visa, Defense of Marriage Act, DOMA, DOMA repeal, Full Faith and Credit, Full Faith and Credit Clause, Green Card, Immigration for Bi-​National Couples, IR-1 Visa, K-1 Visa, LGBT couples, President Barack Obama, Representative Jerrold Nadler, Respect for Marriage Act, RFMA, Same Sex Marriage, same sex partners, same-​sex couples, Senate Judiciary Committee, Senator Al Franken, Senator Patrick Leahy, States' Rights, U.S. armed forces, uafa, Uniting American Families Act
Posted in same sex visa | No Comments »