Tag Archives: Immigration Act of 1990

USCIS Recognizes Same-Sex Immigration Issues

On July 1st 2013 it became official policy for USCIS to recognize same-sex marriages as being treated equal to heterosexual marriages in terms of immigration.

Because immigration is a federal matter, federal recognition of same-sex marriages is the deciding factor when it comes to this issue. For immigration purposes and being legal in the United States, an individual state’s same-sex marriage laws or policies has zero bearing.

One of the first recent steps in this direction came with the Immigration Act of 1990, which among other things prohibited the exclusion of immigrants based on the fact that they were homosexual. Before 1990 it was on the books that you could be denied citizenship on the grounds of being homosexual.

The federal government first defined marriage as an act which only takes place between a man and a woman in 1996 in the Defense of Marriage Act (DOMA). A specific portion of the DOMA, Section 3, also declared the federal government would not recognize same-sex marriages for federal purposes- i.e. taxes, immigration, social security, etc. Prior to this there was no official federal definition of marriage.

However a Supreme Court ruling in 2013 declared Section 3 of DOMA to be unconstitutional. President Obama preceded this ruling in 2011 saying that his administration believed the law to be just that, and would not defend any court actions against it, although the Act still remained in effect until at least Section 3 was recently declared moot.

A week after the Supreme Court’s decision on DOMA the director of Homeland Security at the time, Janet Napolitano, issued a directive to USCIS ordering federal recognition of same-sex marriage for the purposes of immigration. This means you can apply for same-sex marriage immigration visas and petitions as would anyone else involved in an immigration case based on a heterosexual marriage. This includes the following circumstances where you are a U.S. citizen or lawful permanent resident involved in a same-sex relationship and:

  • You are engaged to a foreign national and would like to petition them to come to the US
  • You are already married to a foreign national and would like to petition for them to come live with you in the US
  • You have previously had a petition denied based on the fact that you were in a same-sex marriage or relationship and can now bring this to the attention of USCIS and have your case reconsidered
  • You would like your spouse to be considered for marriage-based work permission


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The Future of US Immigration Reform

The latest comments from politicians seems to indicate that any action on immigration reform may be slow in coming. A few months ago an immigration bill seemed closer than it had for a while, as voices among the so-called Gang of Eight bipartisan sponsors of the 2013 Comprehensive Immigration Reform Bill, including Marco Rubio, Lindsey Graham, John McCain, and Jeff Flake – all prominent Republican Senators – were offering moderately cautioned language for what sounded like hints at a grand bargain. However today there is speculation that any immigration legislation may be over a year away. To shed some light on the current debacle let’s take a look at comprehensive immigration reform in recent history.

The idea of a comprehensive immigration reform bill, the catch phrase thrown around by politicians in Congress, has been in the works arguably since the last major immigration reform in 1986. That was the Immigration Reform and Control Act of 1986, also known as the Simpson-Mazzoli Act, which had two significant repercussions: placing the responsibility for verification of a worker’s immigration status on the employer and granting a conditional amnesty to illegal immigrants who had been in the country continuously since 1982.

Next there was the Immigration Act of 1990 that dealt mainly with admission numbers of immigrants to the US, raising them by 500,000 to 700,000 in total, and also making a few adjustments to non-immigrant admissions criteria along with revising the grounds for deportation. Admissions were structured to favor family-based cases, and the final Act was signed by George HW Bush.

This was followed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, signed into law by Bill Clinton. Dealing primarily with immigrants already in the country, this Act provided certain conditions under which one could obtain a pardon and apply for an adjustment of status, or could apply to legally immigrate after moving back outside the US for a period of time. It also made it easier to deport illegal immigrants if they committed crimes; previously the bar for deportation had been set for offenses that carried a penalty of five or more years in jail. This 1996 Act lowered that bar to minor offenses and was applied retroactively, meaning for instance that illegal immigrants who had been convicted of crimes such as shoplifting would be targeted to deportation.

Since 2001 members on both sides of the aisle have been trying to get a version of the DREAM Act – or Development, Relief, and Education for Alien Minors Act – passed, but to no avail. As the name suggests, the various versions of this legislation have been aimed at providing a path to citizenship for illegal immigrants who came to the US as minors. Many states have passed their own versions of the DREAM Act, but as immigration status and citizenship is solely a federal issue, these state versions primarily can only deal with school admissions and financial aid.

And now we come to the current immigration bill passed by the Senate on June 27, 2013 that has virtually no chance of being brought up for a vote in the Republican-controlled House of Representatives where it faces stiff opposition among party members. The current Senate version is indeed a grand bargain that would provide a path towards citizenship for approximately 11 million undocumented immigrants while adding an additional 20,000 border agents to our nation’s frontiers.

It seemed that immigration reform had a good chance at passing after Mitt Romney lost his 2012 bid for the White House and voices in the Republican Party began speculating what could be done to win more Latino votes, but after the recent government shutdown and battle over the Affordable Care Act, the only talk about comprehensive immigration reform is when it is mentioned with the year 2015, and it seems the chances for this happening are already less than when it could have been brought up after the 2012 presidential election. And the reason for it all is…politics of course.

The primary stated goal of the Republican Party before the 2012 presidential election was to defeat Barack Obama. That shouldn’t have come as a surprise to anyone, and although no one got a nice sound clip of it, the primary goal of the Democrats was obviously to get Obama reelected. And it should also be of no surprise that the parties have the same goals for the 2016 election and the even-sooner 2014 midterm, which incidentally also include gaining control of the House and Senate.

So where does comprehensive immigration reform fall into this? The time for a grand deal was ripe after the Romney defeat in 2012. Republicans could have said they helped to bring about immigration reform in cooperation with the president and rode slogans with this message until the next election. They could have also claimed credit for getting tougher border controls implemented and more border agents hired, relating back to their constant “jobs” theme. Of course the Democrats could use the PR with the human face of immigration from any deal more strongly than the Republicans, but at least the Republicans could claim some credit too and they wouldn’t be in the position they are now as deal-spoilers.

However because of the recent negative attention to the poor rollout of the Affordable Care Act website and insurance cancellation mess, the Republican Party has calculated they will get more traction in the midterm 2014 election and 2016 presidential election by criticizing the Affordable Care Act and dealing with specific pieces of the comprehensive immigration reform act passed by the Senate.

The question of what the Republicans are going to do to attract the important votes of more Latinos still looms over the party, but they figure that they can deal with this through smaller pieces of legislation later that will certainly not be any type of grand bargain. Maybe Republican Party leaders are right to think they would get as much traction out of some smaller immigration concessions to the Democrats as they would have from a grand bargain in 2013.

However if the Affordable Care Act catches on with the majority of Americans that will be a huge positive achievement for the Democrats, and the Republicans will have to scramble to find something to stand for besides jobs and being pro-life. Maybe then they would be more interested in a grand deal on immigration.

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