Month: March 2013

NINE states and the District of Columbia (D.C.) legally recognize same sex marriages. When one of the parties in the relationship who is either a lawful permanent resident or a U.S. citizen, files an immigrant petition for his/her partner, the petition is still expected to be denied by the U.S. Citizenship and Immigration Services.  

Regina entered the United States as an H1B visa holder. In 2004, she married her partner, Jane, in a civil ceremony held in San Francisco, California when same sex marriage was still legal. When her visa expired in 2009, her employment was terminated and her authorized stay expired. She decided to stay with her same sex partner Jane who is a U.S. citizen.  Regina is now undocumented. She realizes that the U.S. Citizenship and Immigration Services do not recognize their marriage.  With the recent hearings conducted by the U.S. Supreme Court, Regina is hopeful that her marriage to Jane may soon be recognized and she can receive her green card through her partner’s petition. What are the chances that these aspirations of Regina become a reality? How many more non-U.S. citizens are in the same predicament as Regina?

Supreme Court Cases on Gay Marriages

For two consecutive days this month, the US Supreme Court heard oral arguments in two cases involving same-sex marriages.

The first case involves the constitutionality of California’s Proposition 8. This case started a few years back when the Mayor of San Francisco started performing same-sex marriages.   Immediately, conservative organizations questioned the validity of these marriages by filing test cases in California courts. Eventually these cases reached the California Supreme Court which declared these same-sex marriages as valid.

These conservative and religious groups, of course, did not want to accept the California Supreme Court’s decision as the final word.  Instead, they decided to go directly to the people of California by starting a ballot initiative and asking for their vote to ban same-sex marriages.  This ballot initiative became known as Proposition 8 (or, Prop 8). The Prop 8 ballot initiative banning same-sex marriages passed by majority vote.

Hence, we had a Supreme Court of California’s decision declaring same sex marriage as legal and a Prop 8 initiative banning same sex marriage. With these contradictory resolutions, the matter is now with the U.S. Supreme Court for review.

 Parties who were denied marriage licenses because of Prop 8 filed test cases in California courts questioning the validity of Prop 8. The simple argument is that “marriage” is a basic civil right and the ban on same-sex marriage is unconstitutional. The Governor of California as well as the Attorney General of California agreed; and, refused to defend the constitutionality of Prop 8 in court.  They instead authorized private parties, who were the original proponents of Prop 8, to defend Prop 8 in court. Federal district court, as well as the subsequent federal Court of Appeals case, issued judgment in favor of same-sex marriages. Hence, the case was brought to the US Supreme Court.

There are a number of ways that the US Supreme Court can decide this matter. The hope of the LGBT community, of course, is for the US Supreme Court to issue a ruling that marriage, regardless of the sex of the couple, is a constitutional right and made applicable to all 50 states. The argument for the proponents of Prop 8 is that the ban on same-sex marriages was passed by the vote of the people and courts should not impose their judgment on the voters.  The oral arguments on the first of these 2 same-sex marriage cases were heard on March 26, 2013. It is expected that the US Supreme Court will come out with a decision in June 2013.

The second of the same-sex marriage cases involves the Defense of Marriage Act (DOMA), which was heard on March 27, 2013. This case involves a same-sex couple who had been together for more than 2 decades. This couple got married 2007 in Canada (where same-sex marriage is legal). The couple lives in New York (where same-sex marriage is also legal).  One of them died in 2009 and the survivor inherited the property.  Under federal law spouses can inherit properties from each other tax-free. The parties in this DOMA, however, faced an inheritance tax bill of $360,000 from the IRS simply because federal law does not recognize benefits for same-sex couples.  

Similar to the Prop 8 case, this DOMA case was not defended by the executive branch of the US government.  President Obama is of the opinion that DOMA is unconstitutional and has refused to defend the DOMA law in court.  Instead, the House of Representatives Republicans hired their own lawyer to defend the law.  Since this matter is now with the U.S. Supreme Court, if DOMA is declared unconstitutional there would be an end to discrimination against gay married couples in terms of the administration of federal programs and in the area of immigration.

 Having had centuries of marriages involving only man and woman, it is understandably hard to change the minds of people to accept a different norm. So how is the same-sex marriage issue before the US Supreme Court relevant to us as Filipinos? If either one or both of the two cases before the US Supreme Court results in a favorable judgment for same-sex marriages, then it will have far-reaching consequences. Under current law, same sex couples like Regina and Jane may not obtain immigration benefits that is the non-U.S. citizen spouse in the same-sex relationship cannot be petitioned by a US citizen spouse. However, if either of the two same-sex marriage cases is a win, then federal immigration laws (as well as all other laws as diverse as taxation, insurance, SSS benefits, survivors’ benefits, etc.) will have to radically change. Benefits accruing to same-sex couples, benefits that opposite-sex couple now merely take for granted as a given, will be enormous.  The U.S. Supreme Court will decide on the cases in June 2013 and quite predictably, in analyzing the recent development in these cases, it will not be hard to see the day the non-U.S. citizen party in the same-sex relationship may migrate to the United States.

(Tancinco may be reached at law@tancinco.com or at 1-888-930-0808 (US) or 02 887 7177 (Manila) or visit her website at tancinco.weareph.com/old)

Aurora filed immigrant petitions for her three married children in 1998. Her children were beneficiaries of prior petitions filed by Jose, Aurora’s husband.  Unfortunately, Jose died in 1997 resulting in the automatic revocation of the petitions. Aurora and her ex-husband obtained their resident visas through employment-based petitions. Instead of returning to the Philippines to be with her children after her husband’s death, Aurora decided to stay in the United States to wait for the visas of her children.

The petition of Aurora for her children falls under the third-family preference category, married adult children of U.S. citizens. She is aware that she will have to wait for more than sixteen years for her children to arrive. The visa bulletin released by the Department of State reveals that for the month of March 2013, only petitions filed in 1992 are currently being processed for visas. It will take quite some time before visas for the petitions filed in 1998 are processed for visa issuance. Aurora is positively looking forward for the visa priority date of 1998 to be current. Since she is now 81 years old, by the time the petition becomes current, she would be 87 years old. Nonetheless, she remains hopeful.

Aurora was made aware of the Senate’s proposed version of the comprehensive immigration reform that may include a provision to reduce visas under the family based categories. She wants to know what the impact will be on her petitions and generally, on the immigrant community if the plan pushes through to reduce visas and eliminate certain family based visa categories

Senate’s Likely Version of Immigration Reform

The bi-partisan group of eight U.S. senators is considering decreasing the number of family visas and eliminating the two family based categories. Although there is no final proposal yet, it is likely that the third and fourth family preference categories will be eliminated. These are petitions by U.S. citizens on behalf of their adult-married children and siblings.   There will be a reduction of at least 90,000 family visas that will limit the ability of US citizens to petition their relatives.

In line with the Senators’ framework for comprehensive immigration reform of “attracting the best and the brightest”, they are more inclined to allocate visas for the employment based category. The idea is to shift the number of visas allocated for family in favor of employment based visas without adding visas to the total worldwide numerical quota. The Immigration and Nationality Act specifically provides an annual numerical cap of 226,000 in the family based category and approximately 154,000 in the employment based preferences.
The approach being considered is based on the assumption that the total number of visas available should only be fixed to what is provided for by existing law. If ever there is a change as proposed, visas are simply going to be re-allocated.

No Shifting of Visa Numbers

The real solution to resolve the lengthy backlog in both the family and employment categories is for visa numbers to be increased across the board. Hopefully, there will be no mere shifting of the visa numbers from one category to the other.  

The family is undeniably the source of immigrant strength and vitality. When there is a strong family unit and support, immigrants do not only advance a fundamental value but also they thrive better resulting in significant social and economic benefits. Family members bring skills and resources.  They migrate and build businesses and are successful entrepreneurs as well.  

When family members are petitioned and immigrate to join their relatives, they could provide much needed care to the elders and to minor children. The latter is true especially to Filipino families with strong family networks who care for their elderly parents and support their minor children.

If the manner of attracting the best and brightest is by making it difficult for relatives to immigrate, the opposite effect may result. The highly skilled and talented individuals may be discouraged from applying for visas to come to the United States if their family members will find it difficult to migrate. It will be disheartening for U.S. citizen petitioners, like Aurora, if the plan pushes through to eliminate the family preference categories of siblings and married children of U.S. citizens.

Family and Employment

Ideally, the immigration system must be amended to increase the total numerical worldwide cap and increase the per country limit to resolve the backlog and to foster family unity.

Favoring the category of family petitions over employment petition is a futile approach. When the talented and highly skilled individuals are allowed to petition their families, the employment-based system is also strengthened.  The immigration system for allocating visas for both family and employment petitions must be working together.  Only then can we say that there will be a sincere, fair and humane immigration reform.

(Tancinco may be reached at law@tancinco.com or at 02 887 7177 or 02 721 1963 or visit her website at tancinco.weareph.com/old)