DOMA ruled Unconstitutional

Edith Windsor was in a relationship for a long time, and was married in Canada in 2009. She is 83 and lived in New York. When her spouse died the federal Government levied a tax of $363,000/- that would not be ordinarily levied on a widow.  Why? Because Edith was a lesbian, and the marriage was same sex.

The IRS looks to a State law in determining whether the person is married. New York recognized gay marriages in 2011. But the couple was married in 2009. Under the Federal Law Defense of Marriage Act (DOMA) , the word spouse is defined as a person of the opposite sex. The second circuit yesterday became the second federal court to rule that DOMA is unconstitutional. It takes away the rights of same sex couples that are inherent in heterosexual couples.

Although this case is a tax case, it has humongous impact on Immigration. Many long term same sex couples cannot get the immigration benefits from being married to their long time spouse.  They are actually penalized more heavily than even Edith Windsor.  Many times they are forced to live illegally, with no immigration benefits, but simply because of the love for their partners. If that partner dies, they cannot gain anything monetarily.

Same sex marriage is legal in 6 states and the District of Columbia. 5 more States allow Civil union. 4  States are voting on the issue in November.  Hopefully the tides will turn and we can actually become a land that guarantees "liberty and Justice for all."

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information.

Documentation for the Undocumented

President Obama decreed that students and those who at least graduated high school, has a clean record, and had arrived here illegally as a minor through no fault of their own would not be deported and can get temporary work permits.  The children had to have arrived before 2007,  before the age of 16, and have been present continuously present in the country and been here on June 15, 2012. This sounds good, and many people qualify.  But the problem for many kids is getting the documents.  If they were registered in school since 2007 to present, then school records should suffice.  But the problem comes in where the children graduated from high school before June 2012.

After they graduate, many children simply live with their parents.  They dont have lease, or utility bills under their name.

They work illegally for cash. Their employers dont want to say that to the government, and understandably so.  Since they deal in cash, they dont have receipts, bank accounts or credit cards.

They are generally in good health and don't visit doctors or hospitals.

Although they attend church regularly, what United States Citizenship and Immigration Office is looking for is baptism, first communion or wedding records. Just letters from pastors stating that he has seen them attend church may not be enough.

Some of the other evidence would be maybe Facebook records or phone records for texting, or maybe internet postings.  But not all children are computer savvy enough to get this from 2007. And  many may not have Facebook accounts in 2007, and many may not have kept their MySpace accounts from 2007.  Also those records must somehow establish that the children were in the United States. These children certainly did not think, let me post, "Beautiful day in Houston" in 2007, in the hope that maybe sometime in the distant future this would establish that they were living in Houston since 2007.

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information

PERM Audits

Anyone who is recently filing a PERM-Labor Certification knows that the Department of Labor (DOL) is auditing a significant portion of them. I think this is in response to the financial melt down. Lehman Brothers fell in 2008 starting the financial crisis, but it takes DOL this long, (and right about the time we are going back to solvency) to institute a new policy.  Or maybe the Administration just wants to find work for its top heavy officers.  But for whatever reason, PERM audits have increased.

Those who have filed even one PERM knows that DOL is huge on form rather than substance. (After all this organization still believes in newspapers). You have to dot ever i and cross every t. So use the copy and paste function in your computer.  We draft one advertisement, and then copy and paste it for the ads, the prevailing wage, the notice, everything.

Be sure to say travel required nationally, if thats the case. And yes, you can input it in H-14.  But it is not necessary to input the Kellog magic language.  If you do, watch out for the DOL genie to come back and scrutinize if you have considered people with "suitable combination of education and experience. "

Its especially galling that DOL is asking whether the employer or employee paid for the perm. The employer already has to open their own account with the DOL and sign the attorney in. The DOL e mails the employer and asks about the filing once its done.  Why dont they have a question there asking whether the employer paid for the perm? Or in fact all the salient points. That way you save the hassle and time loss for an audit.  But then, when have Government agencies ever been paid to think.

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information.

Race and Immigration

The civil war abolishing slavery was won in 1865. Yet, race continued to be a factor in American society and legal system until the 1950s.  Blacks were never "equal" in the South until Brown vs. Board of Education was adjudicated in 1954. The history of Immigration law is replete with blatant discrimination against people of race, color and national origin. 

A series of acts were passed from 1882 to 1934 called as Asian Exclusion Act, aimed at excluding immigrants from China, Japan, India and Philippines.  It is actually quite funny how the court system tried to justify these exclusions.  They were of course based on nothing but color.  In Ozawa V United States (1922) the Supreme Court did not want to use the term "white" and exclude all other colors.  So they used the term "Caucasian".  However people from India are also of Caucasian descent. So Mr. Bhagat Singh Thind from India wanted to be granted Citizenship, the court was forced to use the term "white" and  exclude all other immigrants.  The court rationalized that unlike European "white" people, people from India cannot readily assimilate into the American society. 

I would love to say that was back then, and how far we have gone, but I simply cant. In 1952, the Mc Carran Walter Act abolished the Asian exclusion act, and started accepting Asians, although restricting them on an ethnic quota.  In 1965, the term "ethnic quota" was changed to "National Origin."  What that means is that if you are an  Asian born in UK you are Ok.   But if you were born in India or China, you have to wait longer than all other people.  And this despite the fact that people from India and China are generally highly educated. 

Asian Americans pay the highest taxes among all ethnic groups. They have the highest SAT scores.  Yet we have very few is any representation in all three branches of the Government. I thought our country was founded upon the principal of  "No taxation without representation."

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information.

Eb-2 Visa Wait Times for India

The October visa bulletin released recently by the Department of State has retrogressed the Priority Date of the EB-2 petitions for India to September 01. 2004 and for China to July 15, 2007.  A lot of clients are asking whether that means they have to wait forever.  Unfortunately visa numbers don’t go by a clear cut mathematical progression, but rather a probability forecast by the Department of State based on approximation of current petitions pending at the Citizenship and Immigration Service.  

Every country is given the same quota for immigration purposes.  India and China being large countries with an enormous amount of higher educated people, the second employment based quota gets filled up very quickly.  Thus people born in India or China have to wait in line, while people born in other countries get the Green Card (Permanent Resident Card) without any wait. 

The Department of State has projected (and note this is a projection only) that the EB-2 numbers for India will go up to 2010 by Spring of 2013.  Also note that a bill was passed by the Congress overwhelmingly to do away with the per country quota.  It is being held up by one lone Senator, Senator Grassley in the Senate.  That bill will probably not get through until the new administration.  But if that bill ever gets passed, it will cut down the wait times for people born in India.

However, there is no guarantee.  And the pendulum can swing the other way and it might take a lot of years (ie even more than the current wait time of 8 years).  There simply is no way to predict. 

For those people fortunate enough to file the I-485 this spring or earlier, after 180 days of filing,  a new employer can port the sponsorship provided the new job is same and similar.  Another issue is that often, once the Priority Date becomes current, the Citizenship and Immigration Service  simply produces and sends the Green Card (Permanent Resident Card).  They do not check or issue any Request for Evidence. Sometimes beneficiary is not working for that sponsoring Company.  However when such beneficiary tries to get the US Citizenship, they risk the chance of losing their Green Card (Permanent Resident Card).  So please make sure that those portability letters are sent out to Citizenship and Immigration Service with the new employers, and keep a copy of it.

  Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information

DACA PERILS

Last night in his acceptance for the nomination speech at the Democratic National Convention, President Barack Obama said, "You're the reason a young immigrant who grew up here and went to school here and pledged allegiance to our flag will no longer be deported from the only country she's ever called home,"   

Yet the Deferred Adjudication for Childhood Arrivals (DACA) has seen less applicants than predicted. There are two reasons for this:

Deferred Action is simply a means for the Government to say, we wont deport you.  But the process is entirely discretionary. ie Each Immigration Judge, or the CIS makes that decision.  

The regulations say that a person will be barred for a "Significant misdemeanor" .  There is no definition of that term.  It probably means that if anyone has just one misdemeanor  for say driving without license, it will be Ok.  But what if someone has 2 misdemeanors? I have been advising clients who have this, to hold off, and see outcomes in other cases. 

The other thing is the outcome of the elections.  DACA is just an executive decision. If Romney gets elected, he can easily stop the program, and even start deporting the dreamers. Thus it is prudent to hold off on filing these applications. 

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information

Texas Driver's License will be issued to DACA recipients

According to a  Department of Public Safety memo to its officers, the Texas DPS Public Relations Office says that the Deferred Action candidates will get the Texas Driver's License. Simply getting the I-821D and the work permit is not enough though. One will have to go through the whole process of getting a new license.  After getting the work permit, one has to get the Social Security number before applying for the Driver's license. 

"All first time applicants for a Texas driver license must:

1. Apply in person at a Texas driver license office.
2. Present documents that verify your identity.
3. Present documents that verify you are a U.S. citizen or have lawful presence. All information on each document must match. Additional documentation may be required to verify conflicting information, incomplete names, and date of birth.
4. Present proof of Social Security Number. If you do not have a Social Security Number, you must complete a Social Security Affidavit form available at the driver license office.
5. Present proof of your Texas residency.
6. Present proof of Texas vehicle registration and liability insurance on all vehicles you own.
7. Complete the application for driver license or identification card (PDF). You may type your information on the form, print it, and bring it with you to the office. If you don’t have a printer, the form is also available at the office.
8. Consent to be photographed, fingerprinted, and provide your signature at the time of application.
9. Pass the written, driving, and vision examinations. (Read more about foreign language examinations.)
10. Pay the required fee with a credit card, cash, money order, or a non-temporary check.
11. Provide a vehicle for the driving exam and present current liability insurance, Texas vehicle registration, and inspection for the vehicle."

The license will be horizontal, and look like a temporary license.  It will be issued for 2 years, or the validity of the work permit. 

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information.