US Immigration Reform: Gay Marriage & Green Cards

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Supreme Court invalidates statutes in DOMA (Defense of Marriage Act) possibly paving the way for Married Gay couples to have same access to US Immigration proceedings as straight couples

A larger social battle and movement has been going on in the US regarding Gay Marriage.  Currently 12 states and DC allow Gay Marriage, however it is only really recognized within the state where the marriage has taken place. So there was no Federal recognition of the relationship so that meant no joint filing of tax returns, no tax free implications of asset transfer upon death, no automatic custodial rights for children, lack of rights around making medical decisions for spouse, etc.

Essentially the lack of rights are too numerous to name. The portion of the DOMA Act signed into law by President Clinton in the 90s that specifies the couple must be a man and a woman was ruled invalid under the Constitution in a close 5-4 decision by the US Supreme Court this pas week and thus now couples married in states that allow Gay Marriage have federal recognition for the things mentioned above. However US Immigration is an unknown frontier as this now effects foreign citizens and possible recognition of marriages outside the US and ultimately is to benefit non US citizens.

For example today under the K1 fiancee visa, K-3 marriage visa, Green Card spousal sponsorship or Non-Immigrant Partner visas, the spouse had to be a heterosexual legally married couple. Now that legal marriage could have happened anywhere but their had to be a Marriage Certificate proof of the relationship. Now most countries around the world still don’t recognize gay marriage and then within some countries, it is certain states or provinces that recognize homosexual domestic partnerships but not marriage and/or it is not recognized at the national level.

In other words the US Immigration implications of this ruling is murky. On the positive side as reported by Think Progress, deportation proceedings had been halted following this ruling against a Colombian man who married a US citizen and tried to file for Permanent Residency. So the Obama Administration and Homeland Security Secretary Janet Napolitano seem to want to allow this ruling to extend to US Immigration, however it is clear that they will actually have to write specified policies for this so it is probably still a wait and see moment at this stage.

UPDATE: (July 1, 2013) The NY Times are reporting a Bulgarian man as the first gay man to have his Green Card Permanent Residency petition approved on Friday following the Supreme Court decision on DOMA on Tuesday. Apparently they alos report that the USCIS has kept record of recent denials in anticipation of a Supreme Court decision on DOMA and that gay couples denied in the past don’t have to refile. However no word as to how far back this goes and probably does not include couples who were denied during President Bush’s tenure. However the USCIS still has to address a lot of issues to formulate a clear policy for this.

UPDATE 2: (July 3, 2013) “[E]ffective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse,” Napolitano writes.

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?

A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?

A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

UPDATE 3: (August, 2 2013) Secretary of State John Kerry has now announced that non-immigrant visa processing like the H-1B visa, E-3 visa, L-1 Visa, J-1 Visa, F-1 visa, etc. will now also allow same sex spousal processing for the partner visas H-4 visa, E-3D visa, L-2 visa, J-2 visa, F-2 visa, etc. if the marriage is legal in the jurisdiction.
“Effective immediately, when same-sex spouses apply for a visa, the Department of State will consider that application in the same manner that it considers the application of opposite-sex spouses. As long as a marriage has been performed in a jurisdiction that recognizes it, so that it is legal, then that marriage is valid under U.S. immigration laws and every married couple will be treated exactly the same.”

Cj

The State of US Immigration 2013

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Recently we did an article about “Why we need US Immigration Reform in 11 Charts” which eloquently talked about what we had identified as the 13 broken areas of US Immigration that needed to be fixed for true US Immigration reform and which was to a decent degree addressed at least in the initial version of the US Immigration Bill submitted to the US Senate in April 2013.

In those 11 charts we talked about how;

– Each month foreigners start more businesses than US born Citizens
– Foreigners earn patents for their work at 3x rate of US born Citizens
– Immigrants contribute far more in taxes than they receive in benefits
– US only issues 13% of all visas to Skilled Immigrants which is even lower than 20 years ago

Since then luminaries such as Bill Gates, Vivek Wadhwa, Mark Zuckerberg via his Fwd.us SuperPAC and led by the Obama White House have pressed the need for Immigration reform for the US Economy at large. The latest entrant to this list, albeit a constant advocate for US Immigration reform is Mary Meeker.

Mary Meeker came to fame in her Morgan Stanley days in the 90s backing many of the Internet heavyweights we take for granted today. Later on in her time there and now in her current role as a partner and head of a large fund at Silicon Valley Venture Capital giant, Kleiner Perkins Caulfield Byers (KPCB) she is covered extensively in the media because of her annual State of the Internet reports which she releases with colleague, Liang Wu and can be dowloaded here. In her latest State of the Internet 2013 report she actually devoted a portion of it to the need for Immigration reform and how it is hurting US technology and economic prospects today and into the future. Then separately for the first time she devoted a separate presentation to “Immigration in America & The Growing Shortage of High-Skilled Workers“. It is actually something we also talked about way back in 2009 with US Immigration & Education Policy and according to Meeker and Wu’s latest research the problem is only accelerating.

One quote they include is a famous one from President Ronald Reagan in 1988;

“You can go to live in France, but you cannot become a Frenchman. You can go to live in Germany or Turkey or Japan, but you cannot become a German, a Turk, or a Japanese. But anyone, from any corner of the Earth, can come to live in America and become an American.”

Now the world has changed a lot in the last 25 years since this was made and become increasing more global and there is probably a couple of other countries in addition to the US that you could include in this list, namely Canada, New Zealand and Australia where any immigrant can become a local. However the statement is very true when it comes to the essence of the US and she uses that as a sad state of affairs today with US Immigration policy being more akin to the other countries of the world who are more hostile to immigrants ever being anything more than visitors our outsiders no matter how they may live in a given country.

The chart below shows US Immigration as a snapshot in 2010 to highlight the false rhetoric and the total missing of the point not to mention factual errors in most US Immigration debates. As can be seen only 1% of total US population is High Skilled Immigrants and that is only 10% of the total 40M Immigrants currently in the US. Therefore all the debate about skilled immigrants taking US jobs and too many visas is completely false and in two of our most recent posts covering Green Card Salaries and Foreign Immigrant Salaries we also show that for the most part these immigrants are commanding salaries commensurate with being highly educated and thus paying a lot of taxes.

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The other two visuals we wanted to highlight from their excellent analysis come from who actually has founded the great American companies and just how much wealth and jobs that has meant directly (not including indirect jobs) for the US Economy.

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In short 4.5 Trillion dollars or 30% of total US GDP is the result of immigrants and to put that in perspective that is about the equivalent of the entire GDP of Latin America, Japan or India today. In fact according to the 2011 “New American” study in 2011 cited in the report, 7 of the 10 most recognized and valuable global brands were founded by 1st or 2nd generation immigrants to the US. This includes; GE, AT&T, IBM, Google, Marlboro, Apple and McDonalds.

Ultimately I hope this report educates you personally and your discussions with your social circles and ultimates helps influence the way you assess all levels of elected officials when they are truly talking about the future innovation and prosperity of America.

Cj