Newsletter 16: August 2013

Newsletter 16: August 2013

Dear Friends of the Firm:

Happy summer! The following are some important immigration updates for you.

 


HR Tips for New Form I-9 Employment Eligibility Verification

As described in our prior News Flash, as of May 7, 2013, all employers are required to use the most recent version of Form I-9. The following tips may help HR transition to the new form and avoid potential penalties for I-9 violations:

  • When an employee provides a new identity document, employers are not required to complete a new Form I-9, nor submit a new E-Verify query. However, you should establish a consistent policy for all employees.
  • Employees with temporary immigration status may provide a printed Form-I-94 from www.cbp.gov/I94 to show HR during employment eligibility verification.
  • The new Form I-9 contains two new fields: Employee’s telephone number and Employee’s email address. Even though the form does not clearly state so, these fields are optional.
  • Employers must provide new hires with the full, expanded I-9 instructions.
  • Put “N/A” in all blank fields, including “Other Names” if an employee has no other names.
  • Employers must use the new Form I-9 for all re-verifications. When an employee’s documents are expiring and must be re-verified, an employer may not use Section 3 of an outdated form to record the re-verification.

Navid Dayzad Serves as Expert Commentator for KCBS News and PBS News

Navid Dayzad was recently interviewed by CBS and PBS news about the immigration consequences of the Supreme Court decision, United States v. Windsor. You can listen to the entire CBS interview here.


A Gift from the State Dept.: Visa Numbers Immediately Available for Spouses and Children of Permanent Residents

The Department of State announced that starting in August, visa numbers are available for spouses and children of legal permanent residents to apply for U.S. permanent residence. If you are a green card holder hoping to sponsor your spouse and/or child for U.S. permanent residence—now is the time! Please contact us immediately to take advantage of this wonderful—but short—opportunity.


Significant Developments for LGBT Immigrants Following Supreme Court Decision

The Supreme Court’s decision in Windsor vs. United States opens the doors for equal access to immigration benefits for gays and lesbians. It also opens the door to a new era in our nation’s immigration history. As the Director of the U.S. Citizenship and Immigration Services told us, “Gay and lesbian couples now have the freedom to be, and opportunity to become.” Our law firm has been working very closely with the various government agencies to help you navigate these uncharted waters smoothly.

The following is an overview of the immigration benefits that are now available to legally married gays and lesbians (as they have been to straight immigrants):

  • Green Cards: Approvals are already arriving for pioneering clients that submitted applications before the Supreme Court decision.
  • Fiancé and Fiancée Visas: Available for foreign-nationals that intend to legitimately marry a U.S. citizen in a U.S. state that permits such marriages. Importantly, it is irrelevant whether the state where the couples live recognizes same-sex marriages.
  • Various Immigrant and Non-Immigrant Visas Issued at Consulates: On August 2, 2013, the State Department implemented a policy to treat applications of gay/lesbian couples the same way as those of straight couples.
  • Spouses of Employees: Businesses no longer have to jump through extra hoops to help foreign-national employees have their gay/lesbian spouses accompany them in the United States.
  • Hardship Waivers: In determining whether to forgive a spouse for being in the U.S. unlawfully, the government will now recognize hardships to U.S. citizens and permanent residents in gay relationships. Previously, such couples were considered strangers under the law.
  • Step Children of Gay/Lesbian Couples: Will very likely be eligible for immigration benefits in the same way as children of straight couples.
  • Victims of Domestic Violence: Can self-petition for green cards if married to U.S. a citizen.
  • Widows and Widowers of U.S. Citizens: May qualify for green cards, if they submit applications within two years of the U.S. citizen’s death.
  • U.S. Citizenship: A fast track to U.S. citizenship is available for foreign-nationals who are permanent residents and married to U.S. citizens for three years.
  • Transgender Individuals: Can apply for green cards or fiancé/fiancée visas even if they are unable to obtain an amended identity document or medical certification affirming gender.
  • Deportation Defense: Foreign nationals may be able to avoid deportation and obtain green cards by showing extreme and unusual hardship to their gay/lesbian U.S. citizen or permanent resident spouse.

Besides navigating the new benefits described above, there are other tricky issues that require vigilant attention. Navid continues to advocate on behalf of LGBT immigrants with liaisons to the U.S. government on the following remaining issues:

  • Canadians: Currently, there is no Customs and Border Patrol policy in place to permit the admission of same-sex couples as dependent nonimmigrants. This especially impacts citizens of Canada, where same-sex marriage has been legal since 2005.
  • Confidentiality: The confidentiality and safety of individuals living in countries that criminalize (and even execute) gays and lesbians is critical. The State Department must take steps to protect the confidentiality of these individuals.
  • Documents Demonstrating a Bona fide Marriage: Evidence of a true gay/lesbian marriage may look different from that which is typically submitted by straight couples. For example, a couple may not have evidence of joint tax returns or other standard evidence because the couple had to keep their relationship a secret due to discrimination.
  • Prior Straight Marriage Followed by Gay Marriage: May raise suspicions of a fraudulent marriage if it is not presented clearly to the government.
  • Spouses Left Behind: A foreign-national may have received a green card, but was forced to leave her spouse in their home country because their marriage was not recognized.
  • Civil Unions and Domestic Partnerships: At this time, immigration eligibility is established only where a relationship is legally considered to be a marriage—not a civil union or domestic partnership. A broader interpretation by the U.S. government may have implications for a couple’s immigration strategy.
  • Loss of Eligibility: Married gays/lesbians that applied for immigrant visas as single persons are now recognized by the government as married persons. Such foreign-nationals may now have to wait longer for a visa number or could even become ineligible for an immigrant visa.

U.S. Senate Passes Immigration Reform

This summer, the U.S. Senate passed comprehensive immigration reform legislation (S. 744) by a vote of 68-32 (including 14 Republicans). This landmark vote reflects how far the country has come in understanding the significance of immigration reform to the health and well-being of the nation. Now that the immigration reform bill has passed the Senate, it will be sent to the House of Representatives for consideration.

The House of Representatives has four options regarding immigration reform:

  1. It may consider piecemeal legislation (which may include a road to legalization and citizenship) that could be sent to a conference committee with the Senate’s bill;
  2. It may move forward with its own comprehensive bill that could then be sent to a conference committee with the Senate’s bill;
  3. It may consider the Senate’s bill directly (however, Speaker Boehner has stated several times that the House will not consider the Senate’s bill); or
  4. It may do nothing and leave immigration reform in stasis until the next session of Congress (after the 2014 elections).

Immigration News in Brief

  • Navid Dayzad to Join Two AILA Committees, Will Serve as Vice Chair:

    Upon nomination by president of the American Immigration Lawyers Association (AILA), Navid Dayzad will serve as Vice Chair of the organization’s LGBT Immigration Issues Working Group. He will also join AILA’s Practice Management Committee. In these roles, Navid will discuss important updates in immigration law and practice management that can help us better serve our clients.

  • Dayzad Law Offices Attends International Immigration Law Conference:

    Nicole Black and Navid Dayzad enjoyed attending the American Immigration Lawyers Association’s international conference in San Francisco, CA. While there, they swapped information and insights with immigration attorneys from around the world regarding changes in immigration laws and procedures.

  • Government I-94 Mistakes Continue:

    Reports from the trenches suggest that I-94 mistakes continue to plague international travelers. Foreign-nationals should be vigilant! These mistakes can have serious effects on an individual’s immigration status and can be costly to fix retroactively. To help minimize these mistakes, our law firm can prepare in advance an “Attorney I-94 Travel Letter” that explains to the officer what should be recorded on the specific individual’s Form I-94 and the legal basis for it.

  • How to Marry in California

    Clients often ask us, “How do we get married??” The following are valuable tips for California residents. First, you and your partner must obtain a marriage license from the office of the Registrar-Recorder/County Clerk of any California county. Both partners must go together to the county office to complete the marriage license application and present a government-issued picture ID and proof that both are over 18 years old. (If either or both is younger than 18, different procedures apply.) Some counties post their marriage license applications online so you can fill them out before you arrive at the County Clerk’s office. (For example, http://www.lavote.net/Clerk/Marriages.cfm). The license fee varies by county, but is generally less than $100. No blood test or health certificate is required. Call ahead or visit the county’s website to learn the hours, locations and fees of the county offices that issue licenses.

    Once you receive the marriage license, it will remain valid for 90 days. Before the marriage license expires, a ceremony must be performed by someone authorized to solemnize marriages (such as a judge or clergy member). The person who performs the marriage ceremony and at least one adult witness must sign the marriage license. You may be able to have your ceremony performed at the county office on the same day you obtain a marriage license. You return the license to the county office within ten days of the ceremony. You will then receive your official marriage certificate several weeks later. (Thank you to our friends from Lambda Legal for this information.)

    Confidential Marriage Licenses are also available to California couples who are living together as spouses at the time they apply. No witnesses are required to attend the ceremony or sign the marriage license. The marriage license is a confidential record and is registered at the County Clerk’s Office in the county where it was purchased. Only the couple may purchase copies of the marriage license and must present valid picture identification in order to do so. Copies of Confidential Marriage Licenses are not available to any other person without a court order.


Note: This publication serves only as general information and is not a substitute for consultation with an attorney who can assess the specifics of your case and inform you of the constant changes in law and policy. No attorney-client relationship is formed by the transmission of this information until a legal service contract has been signed by both of us.