Visa Lawyer Blog

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Citing the Defense of Marriage Act, the Obama administration denied immigration benefits to a married gay couple from San Francisco and ordered the expulsion of a man who is the primary caregiver to his AIDS-afflicted spouse.

Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia, were married seven years ago in Massachusetts. They have lived together 19 years, mostly in an apartment in the Castro district. The U.S. Citizenship and Immigration Services denied Makk’s application to be considered for permanent residency as a spouse of an American citizen, citing the 1996 law that denies all federal benefits to same-sex couples.

The decision was issued July 26. Immigration Equality, a gay-rights group that is working with the couple, received the notice Friday and made it public Monday. Makk was ordered to depart the United States by Aug. 25. Makk is the sole caregiver for Wells, who has severe health problems.

“I’m married just like any other married person in this country,” Wells said. “At this point, the government can come in and take my husband and deport him. It’s infuriating. It’s upsetting. I have no power, no right to keep my husband in this country. I love this country, I live here, I pay taxes and I have no right to share my home with the person I married.”
Husband’s pleas
Wells pleaded with Homeland Security Secretary Janet Napolitano and President Obama to intervene.

“Anyone can identify with the horror of having the government come in and destroy your family when you’ve done nothing wrong, and you’ve done everything right, followed every law,” Wells said.

The agency’s decision cited the Defense of Marriage Act as the reason for the denial of an I-130 visa, or spousal petition that could allow Makk to apply for permanent U.S. residency. “The claimed relationship between the petitioner and the beneficiary is not a petitionable relationship,” the decision said. “For a relationship to qualify as a marriage for purposes of federal law, one partner must be a man and the other a woman.”

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Last week, the U.S. House of Representatives passed two immigration bills before members left for their summer recess.

The first bill, H.R. 398, was sponsored by House Immigration Subcommittee Ranking Chair Zoe Lofgren (D-CA) and would amend the law that stipulates a 90-day period during which time an alien and petitioning spouse must file a petition and complete an interview to remove the alien’s conditional legal permanent resident status. Under the new legislation, the period of time would be placed on hold while either partner is a member of the U.S. military serving abroad, in order to extend the deadline.

The second bill, H.R. 1933, was sponsored by House Judiciary Chair Lamar Smith (R-TX) and would reinstate an expired program that admits nonimmigrant nurses in shortage areas for health professions. The new proposal would allow the government to issue 300 visas per year to eligible foreign nurses. The visas would be valid for three years and would be renewable for an additional three-year period. Now let us see what the Senate will do with respect to the above referenced bills.

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State lawmakers considered a record number of immigration-related bills this year, highlighting their continued frustration with federal government inaction on immigration laws, according to the National Conference of State Legislatures.

A total of 1,592 bills were introduced in all 50 states and Puerto Rico in the 2011 legislative session that ended June 30, a report by the bipartisan research organization found.

Legislators in 40 states enacted 151 of the bills, which mainly addressed law enforcement, identification and employment issues, said Ann Morse, program director of the conference’s immigrant policy project. An additional five laws were vetoed by governors.

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Recently, USCIS published new guidelines for the Employment Based Second Preference (EB-2) Immigrant Visa Category. In particular the new guidelines outline how Entrepreneurs can apply under the National Interest Waiver under this visa category. An Entrepreneur qualifies under this category in two ways, as a person holding an advanced degree, and a person who has an exceptional ability in the arts, sciences, or business.

First, the Entrepreneur must show that he or she is a person who holds an advanced degree or an individual of exceptional ability. Next, the Entrepreneur must show that their work is in the national interest. Although the term “national interest” is not defined by law, the case of New York State Department of Transportation has a three prong test that the Entrepreneur must meet in order to qualify. The three prongs of the test are:

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.

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USCIS updated the Q & A document on employer-employee relationships for the purpose of determining H-1B eligibility. This updated Q & A follows from the memo entitled, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements.

The updated Q & A document addresses several key points of the memo, including clarifications on the types of evidence that can be submitted to USCIS to demonstrate an employer-employee relationship and what a petitioner should do if specifically-requested documentation is not available or does not exist.

Specifically, USCIS states that the types of evidence that can be submitted to demonstrate the employer-employee relationship can be those listed in the original memo, which include:

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USCIS Director Alejandro Mayorkas discusses on the official USCIS blog, The Beacon, how current immigration policies will spur job growth and bolster the U.S. economy. The United States has a long, rich history of welcoming innovative entrepreneurs and skilled workers into our country. These men and women fuel our nation’s economy by creating jobs, and promoting new technologies and ideas. Secretary of Homeland Security Janet Napolitano and outlined a series of new policy, operational, and outreach efforts that will help fuel the nation’s economy and stimulate investment by making it easier for high-skill immigrants to start and grow companies and create jobs here in the United States.

Encouraging the kinds of streamlining measures USCIS is taking today has been one key focus of the President’s Council on Jobs and Competitiveness because they help ensure that America can continue to out-innovate and out-compete the world in a global economy.

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS announced that it will:

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A couple weeks ago, Representative Luis V. Gutierrez, a Democrat from Illinois who has become a perennial thorn on immigration for President Obama, was arrested Tuesday afternoon along with about a dozen activists in a protest outside the White House.

The protesters were arrested peacefully after they sat down on the White House sidewalk, following a rally where demonstrators denounced the Obama administration for deporting more than one million immigrants in the last two years.

In a letter to Mr. Gutierrez on Monday, Mr. Obama rejected his proposal to suspend deportations of illegal immigrant college students with clean criminal records. Last week, Mr. Gutierrez and three other House Democrats had sent a letter to the president requesting the suspensions and also asking him to take executive measures to make it easier for illegal immigrants married to American citizens to remain in the United States.

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Here we go again. A federal grand jury has indicted a former Sacramento immigration consultant and 13 other individuals alleging they participated in an elaborate immigration fraud scheme in which foreign nationals from Eastern Europe and Russia paid to enter into sham marriages with locally recruited U.S. citizens.

For foreign nationals, marriage to an American citizen is one means of obtaining lawful permanent residency in the United States. To initiate that process, aliens who are outside the country must apply for a fiancé visa, which enables them to travel to the United States to marry the citizen spouse. Alternatively, foreign nationals who are already in the United States and entered the country legally, may wed here and apply for lawful permanent residence based upon the marriage.

According to court documents, the scheme involved foreign nationals from Eastern Europe and Russia who paid fees of up to five figures to enter into sham marriages with U.S. citizens. U.S. Attorney Benjamin B. Wagner announced the unsealing of the multi-count indictment charging former immigration consultant Sergey Potepalov, 55, of Citrus Heights, Calif., and the other defendants with conspiring to commit marriage fraud, defrauding the United States, making false statements, and inducing aliens to enter and remain in the United States.

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Attorney Ekaterina Powell from our office has prepared this article about the recently approved I-601 waiver case handled by our law firm.

Our client in this case, John, got married to his U.S. citizen wife, Mary, in San Diego, California. They started the application process for adjustment of status. At the adjustment interview, the immigration officer let them know that a green card cannot be granted to John because he was found to be inadmissible on the grounds of misrepresentation and fraud in connection with his previous visa application.

The couple was devastated. They came to our office to see if we can help them with I-601
Application for waiver of grounds of inadmissibility. We took the case, and we started working with the couple in preparing I-601 waiver petition.

I-601 cases are very unique. Each of them has its own story, a story of a family with lives of many people dependent on the result of the waiver process. The success of the case, often times, means whether the family is going to stay together. Sometimes, if such case is denied, it is a heartbreaking story of a family that used to be happy once but now they have to separate and live apart in different countries for the rest of their lives. It is especially devastating when minor children are involved who would be raised without a parent if the waiver does not succeed.

I-601 cases are very complex and require extensive legal analysis. We are particularly happy if we can assist our clients with I-601 waivers to save their families from falling apart.

I-601 waiver can cure many grounds of inadmissibility, including unlawful presence and 3 and 10 year bars, health-related grounds, certain criminal grounds, fraud and misrepresentation, alien smuggling and certain other grounds of inadmissibility.

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The California DREAM Act is now law after Gov. Jerry Brown signed AB 130 on Monday afternoon, but undocumented immigrant students’ say their fight for financial aid access is far from over in the state. The most important portion of the California DREAM Act has yet to pass, activists say.

Starting January 1 of 2012, undocumented immigrant college students will be eligible for privately funded non-state scholarships that they previously did not have access to at California community colleges, state colleges and public universities. The bill breezed through the Senate two weeks ago. AB 130 will cost taxpayers nothing, and so was widely seen as an easier political sell. Still, its passage is being hailed as a victory for immigrant communities. The California DREAM Act had been continually approved by the state legislature but was vetoed three times by former Gov. Arnold Schwarzenegger.

You can access more information on the bill here.

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