Integrity Legal

In a recent blog posting the former President of the American Immigration Lawyers Association (AILA), Mr. Charles Kuck, praised Congressman Luis Gutierrez for proposing an Immigration Reform Bill in the United States House of Representatives. Currently, some members of AILA feel that the American Immigration system is highly flawed and, to quote Mr. Kuck’s blog posting:

“The results are tragically similar, children separated from their parents, husbands separated from their wives, businesses unable to secure their future because of a lack of talent and skilled employment, and an economy unable to nimbly shift from the 19th and 20th century into the 21st century. As a country, we can no longer tolerate what has become a human disaster.“

The human perspective of United States Immigration policy is an aspect that some lawmakers fail to consider, but one that they probably should not overlook because America is a nation founded by immigrants and it is our immigrant heritage that makes America a vibrant and innovative nation. The most disturbing facet of the current United States Immigration infrastructure is the fact that it does have a tendency to keep family members separated for, what can turn out to be, a substantially long period of time. For those couple who follow the proper immigration procedures it could still take longer than one year to re-unite a couple.

Of further importance is the need to rectify the US Immigration apparatus with regard to same-sex couples. Unfortunately, due to provisions in the Defense of Marriage Act, it is not possible for same-sex married couples to obtain US Immigration benefits based upon a lawfully executed marriage. There are advocates in the House of Representatives and Senate who wish to change this unfortunate state of affairs, but it seems that they have an uphill battle ahead of them.

Another critical aspect of US Immigration that is desperately in need of an overhaul is the area of employment based visas. Although America is only slowly coming out of “The Great Recession” and is still reluctant to allow more foreign workers into the American labor force, this is a necessity as foreign highly-skilled workers keep the US economy on the cutting edge of both innovation and technology. The United States does itself a disservice by prohibiting foreign skilled workers from entering the country. Hopefully Congressman Gutierrez will be able to get this much needed bill passed and usher in a modern era in US Immigration.

Tags: American Visa, Comprehensive Immigration Reform, Congressman Luis Gutierrez, Same Sex Immigration, same sex visa, US Immigration, US Immigration Thailand, US Visa Thailand, US Visas
Posted in General Legal Information, Legal Opinion, Miscellaneous, Upcoming Legislation, US Visa and Immigration, US Visa Thailand | No Comments »

As reported previously on this blog, HIV is to be taken off of the list of communicable diseases which can cause an Immigrant to be deemed inadmissible to the United States of America. At the time of this writing, anyone who has HIV (Human Immunodeficiency Virus) is not admissible to the United States. This means that those infected with the virus must obtain an I-601 waiver of inadmissibility before they will be allowed to enter the United States. Under the new rule, this will no longer be the case.

To quote a document, provided courtesy of AILA, promulgated by the Department of Health and Human Services:

As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.

As a result of this rule change, it is highly likely that Embassy mandated medical examinations will be greatly altered as it will no longer be necessary for the Embassy-approved doctors (sometimes referred to as civil surgeons) to test prospective immigrants for HIV.

This rule change reflects the new policy of the United States government regarding HIV. Basically the Center for Disease Control and the authorities at the Department of Homeland Security no longer consider HIV a “communicable” disease as defined in the relevant provisions of  Immigration and Nationality Act. To further quote the aforementioned document:

While HIV infection is a serious health condition, it is not a communicable disease that is a significant public health risk for introduction, transmission, and spread to the U.S. population through casual contact.

Please note that this rule has not taken effect and until it does HIV is still considered a communicable disease in cases involving inadmissibility.

Although many laud the promulgation of this rule, there are those, particularly in the LGBT community who feel that the current Administration is not doing enough to provide immigration benefits to same sex couples. Many view this rule change as a “half measure” designed to placate advocates for gay rights as HIV has a major impact upon the gay and lesbian community.

Although this rule change will effect those with HIV who wish to enter the USA, it does not effect same-sex bi-national couples who cannot obtain US Immigration benefits for a foreign partner based upon the current federal laws which do not recognize same-sex marriage. There are many who feel that the rescission of this rule regarding HIV infected immigrants falls short of full immigration equality for all.

Tags: 601 Waiver, gay visa, HIV ban, HIV inadmissibility, I-601, I-601 Waiver, I601, I601 Waiver, Inadmissibility, lgbt immigration, Same Sex Immigration, Same Sex Marriage, same sex visa, waiver of inadmissibility
Posted in General Legal Information, US Visa and Immigration, US Visa Thailand, Visa Waiver | 1 Comment »

Massachusetts  fired the opening salvo in what appears to be a major battle for same sex immigration rights. The Commonwealth is suing the Federal government of the United States. Specifically repugnant to the Commonwealth of Massachusetts is the so-called Defense of Marriage Act.  The first pillar of the case brought against the USA is based upon the idea that the provisions of the Defense of Marriage Act (DOMA) deny those same sex couples married in the Commonwealth the “essential rights and protections” accorded to different sex couples.

A further, and in my opinion more compelling, argument deals with the issues of state versus federal sovereignty. The Commonwealth of Massachusetts asserts that the United States government does not have the right to dictate to the states about what will and will not constitute marriage. By refusing to acknowledge a valid same-sex marriage legally executed in a state (in this case the Commonwealth of Massachusetts), the Federal government is refusing to provide Federal benefits to married same-sex couples, while providing benefits to married different-sex couples. This denial violates the doctrine of “states’ rights” which contends that the states, not the federal government, are endowed with the inherent right to regulate the citizenry.

Hillary Sorin wrote the following on this issue:

“Five states now legally marry same-sex couples, but these couples are denied the federal protections and programs available to married straight couples. These include income-tax credits, employment and retirement benefits, health insurance coverage, Social Security payments and immigration benefits for spouses of U.S. citizens.”

Of particular interest to readers of this blog is probably the fact that DOMA effectively precludes US Family based visas because the Federal government refuses to recognize a same sex marriage (or an intention to obtain a same sex marriage) within the United States.

If DOMA were to be repealed then it is logical to assume that those same sex bi-national couples who marry in Massachusetts (or any state where same-sex marriage is legal) would be able to obtain a Permanent Resident Visa (CR-1, IR-1) based upon that valid marriage. Further, an unmarried  same sex couple with an intention to travel to the United States for the purpose of marriage could conceivably obtain a K-1 visa if the Defense of Marriage Act was no longer Federal law.

This case will be very interesting to follow because the ramifications on Immigration law will be tremendous as the whole field of US Family Immigration will likely be opened up to those couples previously unable to obtain US Immigration benefits.

(Please note that the author has no intention that reader use this information in place of legal advice. For advice on the law, please contact a licensed attorney. No attorney-client relationship is created between the author and any reader of this article.)

Tags: Defense of Marriage Act, DOMA, gay marriage visa, gay us immigration, gay visa, Same Sex Immigration, Same Sex Marriage, same sex visa
Posted in Upcoming Legislation, US Visa and Immigration | No Comments »

President Obama has recently been criticized by many members of the LGBT community for what appears to be a reversal of his campaign stance on same-sex rights.  Presently President Obama’s Justice Department is defending the Defense of Marriage Act (DOMA) in the US courts. However, President Obama has made statements claiming that while his administration is in the process of enforcing the provisions of DOMA, he is also working to have the law repealed. Apparently, President Obama is trying to apply pressure to Congress in order to make them repeal the Defense of Marriage Act. Mr. Obama was quoted in a speech as saying:

“I’ve called on Congress to repeal the so-called Defense of Marriage Act to help end discrimination against same-sex couples in this country. Now, I want to add we have a duty to uphold existing law, but I believe we must do so in a way that does not exacerbate old divides. And fulfilling this duty in upholding the law in no way lessens my commitment to reversing this law.”

What are the Consequences on US Immigration if the Defense of Marriage Act is Repealed?

Should the Defense of Marriage Act be repealed, the upshot would be that the Federal government would recognize same-sex marriage. Therefore, US Immigration benefits would likely be conferred based upon a marital relationship. Thus, if a same sex couple enters into a valid marriage in a country like Belgium, then they could file an I-130 petition for a CR-1 visa based upon their relationship (under this hypothetical scenario, they could also file a supplemental visa application for a K3 visa).

In another hypothetical situation, the same couple are now unmarried, but they have a bona fide relationship and intend to marry in the United States in a jurisdiction that allows and recognizes same sex marriage (Massachusetts for example). This factual situation would likely allow that couple to file a visa application for a K-1 visa because the parties would meet the legal requirements imposed upon those wishing to obtain a US visa for a fiance.

It is currently uncertain whether Obama will successfully lead the charge to repeal the Defense of Marriage Act. What is certain is the fact that should the Defense of Marriage Act be repealed it will have a major impact on United States law and a crucial impact upon same sex immigration rights. If Obama is successful in repealing DOMA the upshot will likely be that the Uniting American Families Act (UAFA) will be rendered superfluous because same sex marriage would be included in the umbrella term “marriage” under current US Immigration law.

(Please not that the above information is for eductaional purposes only. No attorney-client relationship shall be inferred to be formed between the author and any readers of this post.)

Tags: CR1 Visa, DOMA, K1 Visa, K3 Visa, Obama, Same Sex Immigration, same sex visa, uafa, US Immigration, US Visa
Posted in Fiance Visa Thailand, K-3 Visa Thailand, K1 Visa Thailand, Upcoming Legislation, US Visa and Immigration | No Comments »

The White House has been under increasing pressure since Obama’s inauguration to provide equal benefits to same sex couples under United States law. Recently Hillary Clinton reversed previous State Department policy by providing same sex partners of State Department employees with most of the benefits extended to different sex couples (including diplomatic passports for partners).

From the Associated Press: “President Barack Obama, under growing criticism for not seeking to end the ban on openly gay men and women in the military, is extending benefits to same-sex partners of federal employees.”

The question is: will Obama go further in extending benefits to same-sex couples? Specifically, does Obama feel that this gesture is enough to placate the Gay community or will he go further in fulfilling the campaign promises calling for greater equality?

Of particular importance from an Immigration perspective: will the Uniting American Families Act be passed? This law would provide equalized immigration benefits for same-sex couples. Under the Defense of Marriage Act same sex couples are barred from receiving many of the immigration benefits accorded to different sex couples.

The feeling of many American Immigration Lawyers is that UAFA, or some bill similar to the UAFA, will eventually become law. The question is: when?

Hopefully for these families who are being kept apart by Immigration restrictions the UAFA will pass sooner rather than later. The task now is to keep pressure on politicians to pass the legislation. Many believe that Comprehensive Immigration Reform will have some sort of UAFA-like provision rolled into it. This would probably be the most expedient way of dealing with the same-sex immigration situation. However, there is the possibility that a concession such as adding “permanent partner” to the list of those eligible for family immigration benefits, as called for in UAFA, could be cast aside in a committee room or in back room “horse trading” in an effort to save CIR.

The fate of the Uniting American Families Act remains to be seen, but hopefully this legislation will pass. Until the day it is signed into law, no one can say for sure if same-sex immigration benefits will ever be granted

Tags: permanent partner, permanent partner visa, Same Sex Immigration, same sex visa, uafa, Uniting American Families Act
Posted in General Legal Information | 2 Comments »