Comment: Gary Endelman on DOMA - Following New York’s enactment of a statute guaranteeing equal rights to same sex partners who wish to marry, opponents of the Defense of Marriage Act (or DOMA, defining marriage as between one man and one woman, and the basis of I-130 denials by the USCIS for same sex couples) are waiting for challenges to DOMA Section 3 to succeed in court, numerous such cases are in various stages of litigation throughout the country (DOMA Section 2 has been found to be constitutional, and no serious challenges are being levied against it). The widespread opinion among the bar is that a DOMA challenge would first have to succeed in court before those arguing for equality in the immigration context can benefit. In other words, the belief is that equality would have to win first, then immigration equality. We suspect that such belief does not have a proper legal foundation, indeed we believe the truth lies in the opposite direction – immigration equality would have to win first, then other Americans could reap the benefits of equality (we mean from a legal standpoint, not a political one). There are two legal bases for this view, as follows:
Firstly, the plenary power on immigration possessed by the political branches of government cuts two ways – just as the executive enjoys deference when withholding immigration benefits, so it enjoys deference when granting immigration benefits. Since the President has already directed the Attorney General to subject DOMA Section 3 to a heightened standard of scrutiny (a strict scrutiny test, rather than the rational basis test), and indeed called it “unconstitutional”, the Secretary of the DHS, acting through USCIS, may properly direct that DOMA Section 3 be ignored when adjudicating I-130 petitions for same-sex couples. Such a decision may or may not be politically wise, but it appears to us to be quite legal, and subject to the deference that the Executive already enjoys from judicial scrutiny on immigration matters.
Secondly, under Brand X (and its antecedents and its progeny), if USCIS were to adopt regulations to this effect (i.e. permitting same sex I-130 petitions), a subsequent judicial decision in favor of DOMA Section 3 would actually be unavailing in the immigration context, and immigration equality could flourish even if faced by a hostile judiciary, and perhaps even a hostile future administration. Brand X, too, cuts two ways, in our opinion. Again, the Secretary of the DHS may deem this politically unwise, and she may or may not be right in her political decision, but the legal basis of her action as above would appear to be sound.
In other words, the conventional wisdom among the proponents of marriage equality on DOMA may be completely upside down. Enough of our words, lets turn to nationally renowned scholar Gary Endelman. In a timely article on this important topic, Mr. Endelman argues that the correct focus ought to be not the alien but the US citizen petitioner, and the correct judicial precedent is actually Loving v. Virginia (a 1967 decision on inter-racial marriage). We hope that Mr. Endelman’s article can help those who are working to expand immigration benefits (in this case, to same-sex couples) look at this topic from a new angle, and perhaps assist in the various efforts currently underway. Time marches on, and perhaps it is time for the politicians to join the march.
Article: DOMA and Gender Equality: What's Really At Stake by Gary Endelman
Article: Consular Corner June 2011 by Liam Schwartz
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Bloggings: Same-Sex Couple Facing Deportation by Matthew kolken
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Focus: THE H-1B BOOK
THE H-1B BOOK is Edited by Karen Weinstock, and features contributions by Prakash Khatri, Courtney Black, Mikiel J. Davids, Melissa Downing, Rajeshri Patel, Ari J. Sauer, and Elissa Taub. The Table of Contents is as follows:
I. and II. FOREWORD and INTRODUCTION
III. H-1B STEP BY STEP
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Third Step: Credentials: Verify That The Worker Has A US Bachelor's Degree Or Equivalent
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Sixth Step: Prepare The I-129, Related Forms And Petition Letter
Seventh Step: Send All The Forms And Petition Letter To The Client For Review and Signature
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Ninth Step: Troubleshooting
Tenth Step: Post-Approval Case Management
IV. ADVANCED H-1B ISSUES
H-1B Degree Equivalency
Reviewing The Path To Permanent Residency
Traveling On An H-1B Visa While Petition Or Application Is Pending
Dealing With Gaps In Employment
Temporary Visa Alternatives To The H-1B
The History And Economic Impact Of The H-1B Visa
When Are H-1B Visas Cap Exempt?
V. and VI. ESSENTIAL MEMORANDA and CD-ROM RESOURCE MATERIALS
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Headline: Congressman Mo Brooks Makes Strong Comments On Illegal Immigration Law http://ht.ly/5t2Fu
Headline: A Second Try on Immigration Act http://ht.ly/5t2ok
Headline: Senators DREAM on http://ht.ly/5t1TG
Headline: Undocumented Pebblebrook Student Speaks Out After Arrest http://ht.ly/5t1JX
Headline: Miami Immigration Lawyer Wonders if Anyone Will Ever Push for Immigration Reform http://ht.ly/5t1GY
Headline: Senate holds first hearing on DREAM Act http://ht.ly/5t1zr
Headline: RT @TxPotomac: John Cornyn opposes latest version of DREAMAct, calling it a “political football”: http://bit.ly/lJUI8V
Headline: RT @VivirLatino: In Georgia Legal and Extra Legal Responses to Immigration Policies http://bit.ly/jgfKrD
Headline: RT @shapeupwithsim: Our Next Marriage Equality Fight: Repealing DOMA and passing UAFA Bill http://huff.to/lzqFAw
Headline: RT @adonaiman DREAM students arrested for protesting racist Georgia law http://bit.ly/kHx5NP
Headline: RT @UniRadioDallas [@LaVoz1270] Comité del Senado celebra audiencia sobre el DreamAct http://bit.ly/ihSBPg
Headline: UNDOCUMENTED AND UNAFRAID youth get arrested http://ht.ly/5sova
Headline: For Many Immigrants, Marriage Equality Vote Resonates http://ht.ly/5sl7z
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