Presentation on theme: "Title Goes Here Presented By: MIN S. SUH, Shareholder Philadelphia Supreme Court Decision on DOMA – What are the Practical Immigration Implications and."— Presentation transcript:
Title Goes Here Presented By: MIN S. SUH, Shareholder Philadelphia Supreme Court Decision on DOMA – What are the Practical Immigration Implications and How Does it Impact Your Workforce?
United States v. Windsor On June 26, 2013, the Supreme Court struck down a provision of the federal Defense of Marriage Act that denied federal benefits to same-sex partners. “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”
What does the Windsor decision mean for same-sex couples seeking immigration benefits?
The Immigration and Nationality Act and Principles of Legal Reciprocity Immigration authorities are required to respect and apply the law where a marriage took place: A marriage is recognized as valid as long as it is sanctioned by the U.S. state or foreign country in which the marriage took place. Pre-Windsor decision, same-sex petitioners and beneficiaries in legitimate marriages sanctioned by the law of the place of marriage did not have access to immigration benefits.
“Immediate Relative” sponsorship The term “immediate relative(s)” is used to define certain immigrant relatives of U.S. citizens. Immediate relatives now include same-sex partners. Same-sex foreign partners of U.S. citizens are eligible for a “green card” immediately instead of waiting for one to become available based on the annual numerical limitation on “green cards.”
Derivative Nonimmigrant Visas Status Almost all nonimmigrant visas have a "derivative" status (F-2 for F-1, H-4 for H-1B, etc.) that permit spouses and children under the age of 21 to accompany the principal applicant to the U.S. In certain derivative visa classes, spouses can obtain employment authorization.
Qualifying as Dependents for Permanent Resident status When a foreign national obtains permanent residence, the spouse and all children under the age of 21 are also eligible to receive permanent residence.
When can Visa Petitions and Applications be filed? The Windsor ruling is effective immediately. USCIS and DOS will need to issue practical guidance and regulations to create the procedures to process petitions and applications made by same-sex couples.
Challenges Post-Windsor on Immigration Benefits Lack of practical guidance means confusion. Which federal agency will determine whether a marriage is valid in a particular jurisdiction – State Department or USCIS? What about previously denied petitions and applications? Only a few U.S. states and foreign countries recognize same-sex marriage. Civil unions and domestic partnerships do not appear to be covered.
I-9 Employment Verification The Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify and attest to all newly hired employees’ authorization to accept employment in the United States.
I-9 Employment Verification IRCA makes it unlawful for employers to knowingly employ individuals who are unauthorized to work in the United States. IRCA’s anti-discriminatory provision makes it illegal for employers to discriminate with respect to hiring, firing, or recruitment or referral for a fee, based on an individual's citizenship or immigration status.
I-9 Employment Verification Employers must make certain that appropriate work authorizations are on file, and any status changes due to the Windsor decision are made on the I-9 Form.
Employee Handbook and Immigration Sponsorship Policy Develop an I-9 Employment Verification compliance policy. Employee Handbook should incorporate same-sex partner benefits including immigration sponsorship policy. Formalized v. Ad-Hoc Policy