The Shpigler Law Firm, LLC
We have moved!
We want to share some exciting news with you: we are in the process of combining our two office locations into one bigger, better office in Woodstock! Our new office is in the same building as our old Woodstock office, but we've moved to a larger space in Suite #302. The new office is located on Highway 92, just west of Sandy Plains Road. As many of you know, this is where Fulton, Cobb, and Cherokee Counties come together. We also have a new telephone number: 770-592-0009. We will continue to see clients at our Alpharetta location for the next several months, but we expect to phase out that office by the end of the year. As always, please feel free to contact us at email@example.com or at our new telephone number if you have questions about any immigration law issues.
On June 26, 2013, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), declaring it unconstitutional. Section 3 defined a marriage, for federal legal purposes, as existing solely between a man and a woman. By striking down this provision, the Supreme Court ruled that all federal benefits that are available to legally married opposite-sex couples will now be available to legally married same-sex couples. Soon after the decision was issued, Secretary of Homeland Security Janet Napolitano issued a statement directing U.S. Citizenship and Immigration Services (USCIS) to "review all immigration petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse." The Department of State (DOS) followed USCIS's lead, with Secretary of State John Kerry directing all U.S. consular offices to treat petitions filed by same-sex couples in the same way as petitions filed by opposite-sex couples.
Under the revised policy, a U.S. citizen or lawful permanent resident who is in a same-sex marriage to a foreign national may now file a Form I-130 and all related documents to sponsor his or her spouse for a family-based immigrant visa. That petition and all related applications, including an application for adjustment of status, will be adjudicated under applicable immigration law and will no longer be automatically denied due to the same-sex nature of the marriage. In addition, U.S. citizens who are engaged to be married to a person of the same sex may now file fiance/fiancee petitions (Form I-129F) on behalf of their fiancé/fiancee, as long as all immigration requirements are met. Once approved, the foreign national partner can apply for a K-1 visa at a U.S. embassy or consulate abroad and then enter the United States to marry the U.S. petitioner.
Statements issued by USCIS in the past month also make it clear that other immigration benefits that were previously off-limits to same-sex spouses will now be available. For example same-sex spouses will be eligible to apply for dependent visas, including H-4, L-2 and F-2 visas.
USCIS also stated that individuals who are Lawful Permanent Residents and who have been living in "marital union" with a U.S. citizen spouse for at least three years may be eligible to apply for naturalization. This rule mirrors the provision that makes opposite-sex spouses eligible for naturalization after three years of permanent residence, rather than the usual five years of permanent residence.
USCIS indicated that it has been tracking all I-130 petitions that have been denied based on DOMA since February 23, 2011, the date that President Obama decided not to oppose the lawsuit challenging the constitutionality of the law. USCIS plans to unilaterally reopen all I-130 petitions and I-485 applications that were denied based on DOMA since that date, without requiring any additional filing fees or action by the petitioners or beneficiaries. Nevertheless, USCIS encourages these individuals to send an email to USCIS at USCISfirstname.lastname@example.org to make sure that the agency processes their case. Individuals who had an I-130, I-485 or any other immigration benefit denied based on DOMA before February 23, 2011 can also contact USCIS via email to ask that their case be reopened, but such requests must be submitted by March 31, 2014.
If a person was denied an employment authorization document (EAD) or had an EAD revoked because of DOMA, USCIS will issue a new EAD to that person, assuming that biometrics have already been obtained from the individual. If biometrics are still needed, then USCIS will issue a biometrics appointment letter. No new filing fees will be required.
Finally, there is still a question about whether same-sex couples who are legally married but residing in a state that does not recognize such marriages are entitled to the benefits described above. The Frequently Asked Questions (FAQs) issued by USCIS after the DOMA decision are vague on this important question. According to the FAQs, such applicants can seek immigration benefits, and their applications will be reviewed based on "fact-specific circumstances." It is unclear what this means, and we hope that USCIS will explain it in more detail in the near future.
Georgia with more than ten employees must be enrolled in and using E-Verify. E-Verify is the federal employment verification system that that is supposed to help employers confirm the employment eligibility of newly hired or rehired workers. Georgia's E-Verify rules were enacted in 2011 and phased in over the last two years.
Employers must count the number of full-time employees (those working 35 hours per week or more) on January 1 of each year to determine whether they have at least ten employees. Each year, when the employer applies for or renews its business license, occupational tax certificate, or other document required to operate a business in Georgia, the employer must provide evidence that the company is enrolled in and uses E-Verify, or that the company is exempt because it does not have the threshold number of employees.
Employers may enroll in E-Verify on the USCIS website (www.uscis.gov) or through a designated agent, such as an electronic I-9 service provider. The USCIS website has a wealth of information about the program, including webinars, videos, reference guides, and the like.
The Georgia E-Verify law requires contractors and sub-contractors on Georgia public contracts that require "physical performance of services" to enroll in E-Verify, regardless of the number of employees they have. A contractor or subcontractor may be exempt from this requirement if it has no employees and does not hire or intend to hire employees for the purpose of completing any part of the public contract. In addition, contractors are responsible for ensuring that their sub-contractors have complied with the law by requiring the sub-contractor to swear to enrollment or exemption.
Public employers are required to post their federally-issued E-Verify user identification number and date of authorization to use E-Verify on their website.
Attention, world travelers: U.S. Customs and Border Protection (CBP) is expanding the Global Entry program to eight more airports. The Global Entry Program is one of the Trusted Traveler programs administered by CBP. It allows expedited clearance for pre-approved, low-risk individuals upon arrival in the United States. Upon arrival, program participants go to Global Entry kiosks, where they present their machine-readable passport or permanent resident card, have their fingerprints scanned, and make a customs declaration. The kiosk issues the traveler a receipt and sends the traveler on his/her way.
Currently, the program is open to U.S. citizens, lawful permanent residents, and certain other travelers, including Dutch citizens, South Korean citizens, and Mexican nationals. Canadian citizens and residents can take advantage of Global Entry benefits by obtaining membership in the NEXUS system.
Including the eight new airports, Global Entry kiosks are now located at 32 U.S. airports. The eight new additions are Baltimore/Washington International Airport in Maryland, John Wayne Airport in California, Portland International Airport in Oregon, Raleigh-Durham International Airport in North Carolina, Salt Lake City International Airport in Utah, San Antonio International Airport in Texas, San Diego International Airport in California, and Tampa International Airport in Florida.
For more information on the Global Entry program, including instructions on how to enroll in the program, visit www.globalentry.gov.
This Immigration Bulletin is not intended as a substitute for professional legal advice.
Debra R. Shpigler is a member of the American Immigration Lawyers Association.