Tuesday, November 5, 2013

Defense of Marriage Act (DOMA)

Defense of Marriage Act (DOMA)

One of the most significant developments in 2013 was on June 13, 2013 when a section of the Defense of Marriage Act (DOMA) was declared unconstitutional by the United States Supreme Court.  This ruling meant that the federal government was forced to recognize the marriages of same sex couples.  One of the rights that this ruling affects is the right for a U.S. citizen to seek permanent resident status for a foreign-born spouse.  The couple, however, has to be married in a state or country that recognizes same sex marriages.  This right exists even if the couple is currently living in a state that does not recognize same sex marriages.  

Immigrant and Nonimmigrant Visa Basics

Immigrant Visa
Permission from a U.S. Consul to seek admission to the United States.  A visa is issued subsequent to establishing eligibility for admission on a permanent basis under the Immigration and Nationality Act.  Immigrant visas generally permit an alien to be admitted to the United States for permanent residency.  It is necessary for the immigrant to apply for admission during this period, and they are generally valid for six months.  

Nonimmigrant Visa
Is a document that signifies that a consular officer believes that the alien to whom the visa was issued is eligible to apply for admission in a particular nonimmigrant category.   Visas may be valid for anywhere from 30 days to to 10 years.  Visas can be limited to only a single entry or can be valid for multiple entries while they’re valid.  These should be distinguished from the authorized period of stay which is give on the I-94, Arrival Departure Record.  

The period of validity of a visa is not the same as authorized period of temporary stay in the United States.  The authorized period of temporary stay, which is indicated on a small white card -- form I-94, Arrival Departure Record -- stapled into the passport, may be less than the period of validity of the visa, or may be much longer during the period during which the visa itself is valid.  It is important to understand that it is always the I-94 and not the visa in the passport that determines a nonimmigrant alien’s status and its validity as to time and purpose.  An alien is not out of status if he or she was properly admitted pursuant to a valid visa and the visa has expired, provided the person is still within the authorized period of stay indicated on form I-94.  

However, a visa does not guarantee admission; an immigration inspector can deny entry if he or she believes that a particular alien is not eligible to be admitted in the category for which the visa was issued.  The period of validity of a particular visa establishes the time during which the alien may present him or herself at a U.S. port of entry.

What is Adjustment of Status?

Adjustment of Status 

The process of obtaining lawful permanent resident status in the United States without having to leave the United States to do so.  Generally, this option is unavailable to many persons who entered the United States without inspection.  This should be distinguished from “Change of Status” which is generally used when changing from one nonimmigrant status to another.  

Naturalization Basics


Naturalization is the lawful way of acquiring citizenship.  Generally speaking, in order to qualify for naturalization, a person must first be a Lawful Permanent Resident (LPR).  There are some exceptions for military personnel.  The person applying must be at least 18 years old, have resided continuously fin the U.S. for five years after permanent residency.  This requirement is reduced to three years if the person gained their permanent residency status based on a marriage to a U.S. citizen.  It is necessary for the applicant to have a residency for at least three months prior to the application for citizenship in the state in which they are filing their petition.  It is also necessary that the person is physically present in the United States for at least half the residency period.  In addition, it is necessary to maintain a continuous residency in the United States during the naturalization application process.  There is also a requirement of good moral character and a minimal ability to read and write english, as well as understand the basic history and principles of government of the United States.  

Deferred Action for Childhood Arrivals (DACA) Basics

Deferred Action for Childhood Arrivals (DACA)
On June 15, 2012 President Obama announced Deferred Action for Childhood Arrivals, otherwise known The Dream Act.  This allowed children whose parents brought them to the United States prior to them reaching age 16 to be entitled to certain immigration benefits.  This administration has been using “prosecutorial discretion” to not initiate or even terminate removal proceedings against certain foreign nationals who qualify.  In addition, these applicants are entitled to an Employment Authorization Document (EAD) which will allow them to work in the United States for a period of two years.  Generally, this document can be renewed.  

Applicants for DACA should:  
  1. Have entered the U.S. prior to age 16; 
  2. been younger than 31 on June 15, 2012;
  3. have been continuously present in the United States for at least 5 years; 
  4. must have either served in the military or be enrolled in school, or have graduated from high school, or received a GED.  

Applicants cannot have been convicted of a felony, three misdemeanors, or a significant misdemeanor.