DHS and DOS Issues FAQs on US Supreme Court’s DOMA Ruling; Ruling Opens Door to Immigration Benefits for Same-Sex Spouses
Same-sex bi-national couples are now eligible for immigration benefits, owing to the landmark decision of the US Supreme Court in United States vs. Windsor, as now implemented. In this historic ruling, the Supreme Court held that the 1996 Defense of Marriage Act (DOMA) is unconstitutional. DOMA prohibited the federal government from recognizing same-sex marriages, regardless of whether such marriages were legally valid in certain states or in other countries, and from conferring federal benefits (such as derivative immigration status) on same-sex spouses that are enjoyed by heterosexual spouses.
Janet Napolitano, Secretary of Homeland Security, has stated that she applauds the decision. “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws,” she has indicated. U.S. Citizenship and Immigration Services (USCIS) Director, Alejandro Mayorkas, has confirmed that USCIS has compiled a list of marriage-based green card petitions, filed since February 2011, by same-sex bi-national couples, but that were denied. Many of such cases have already been reopened and approved.
The announced procedures apply to same-sex couples residing in states that do not recognize gay marriage, as long as such couples were married in a states or foreign country that recognize such unions. USCIS and DOS have issued frequently asked questions (FAQ) on Same-Sex Marriages, in response to the Supreme Court’s decision regarding constitutionality of DOMA. The FAQs note that U.S. citizens and lawful permanent residents in same-sex marriages to foreign nationals can now sponsor their spouses for family-based immigrant visas and for derivative nonimmigrant status, such as F-2 or H-4. Their eligibility will be determined according to applicable immigration law, and they will not be denied because of a same-sex marriage. Additionally, The FAQs notes that spouses who were married in a U.S. state or foreign country that recognizes same-sex marriage, but who currently live (or will live, in the case of visa applicants) in a state that fails to recognize such marriages, can file immigrant visa petitions for their spouses. The FAQs state that as a general matter, it is the law of the place where the marriage was celebrated that will determine whether the marriage is legally valid for immigration purposes.
The FAQs includes information about Petitioning for a spouse and applying for benefits for under new applications and petitions and previously submitted applications and petitions. Additionally, the FAQ addresses issues concerning changes in eligibility based on same-sex marriage, residence requirements, and inadmissibility waivers.
The USCIS FAQ on Same-Sex Marriages is available here. The DOS FAQ on Same-Sex Marriages is available here.
The Board of Immigration Appeals also issued a precedent decision in a same-sex marriage petition, holding that, for all immigration-related purposes and forms of relief from removal, same-sex marriages will be recognized on the same basis as other marriages. That decision, Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013), is available here.
DOL Proposes to Delay Effective Date of H-2B Wage Methodology Final Rule Indefinitely
The Department of Labor (DOL) proposes to delay indefinitely the effective date of the “Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program” final rule (2011 wage rule) “to comply with recurrent legislation that prohibits the [DOL] from using any funds to implement it, and to permit time for consideration of public comments sought in conjunction with an interim final rule published April 24, 2013, 78 FR 24047.”
The 2011 wage rule revised the methodology by which the DOL calculates the prevailing wage to be paid to H-2B workers and U.S. workers recruited in connection with temporary labor certifications to employ H-2B nonimmigrant workers. The 2011 wage rule was originally scheduled to become effective on January 1, 2012, and the effective date has been extended a number of times, most recently to October 1, 2013. The Department is now proposing to delay the effective date of the 2011 wage rule “until such time as Congress no longer prohibits the [DOL] from implementing” it.
DOL explained that, among other things, the appropriations bill enacted in November 2011 prevented funding but did not prohibit the 2011 wage rule from going into effect. The DOL explained that the 2011 wage rule would supersede and nullify the prevailing wage provisions at 20 CFSR 655.10(b) of the DOL’s existing H-2B regulations. Accordingly, in light of the November 2011 appropriations bill, the DOL decided to delay the effective date of the 2011 wage rule. If the wage rule had taken effect, the DOL explained, “[s]uch an occurrence would have rendered the H-2B program inoperable because the issuance of a prevailing wage determination is a condition precedent to approving an employer’s request for an H-2B labor certification.”
Subsequent appropriations legislation contained the same restriction prohibiting the DOL’s use of appropriated funds to implement, administer, or enforce the 2011 wage rule and, the DOL said, necessitated subsequent extensions of the effective date of that rule. The DOL therefore now proposes to delay the effective date indefinitely until such time as the rule can be implemented with appropriated funds.
Additionally, the DOL and the Department of Homeland Security (DHS) recently promulgated an interim final rule, requesting comments, to establish a new wage methodology in response to CATA v. Solis, decided in 2013. The interim final rule requires prevailing wage determinations issued using the Occupational Employment Statistics (OES) survey to be based on the mean wage for an occupation in the area of intended employment, without tiers or skill levels. The comment period closed on June 10, 2013, and the DOL and DHS are reviewing the comments and determining whether further revisions to 20 CFSR 655.10(b) are warranted. DOL explained that the confluence of the recent Congressional prohibition of implementation of the 2011 wage rule and the DOL’s current review and consideration of comments made in response to the proposed new wage methodology require the indefinite delay of the effective date of the 2011 wage rule. Even if Congress lifts the prohibition of implementation of the 2011 wage rule, the DOL said it would need time to assess the current regulatory framework; consider any changed circumstances, novel concerns, or new information received; and minimize disruptions.
If Congress should no longer prohibit implementation, the DOL would publish a notice in the Federal Register within 45 days on the status of 20 CFR 655.10 and the effective date of the 2011 wage rule.
The DOL’s Federal Register notice of proposed rulemaking is available at http://www.ofr.gov/OFRUpload/OFRData/2013-17676_PI.pdf.
DOL Releases New Version of Application for Prevailing Wage Determination
The Department of Labor (DOL) has released a new version of Form 9141, Application for Prevailing Wage Determination.
The revised version of Form 9141 was implemented on the iCERT Portal on June 18, 2013. The DOL made minor changes “to clarify information needed for more efficient application processing.”
Requests submitted before June 18 using the iCERT Visa Portal System based on the previous ETA Form 9141 will be completed and returned using that version of the form, the DOL said. Any form initiated in a user’s system but not yet submitted by that date, however, will not be accepted. In addition, requests on the previous version of Form 9141 can no longer be “reused” in iCERT to submit a new request for processing. Users can complete a new form by logging into their iCERT Portal account, clicking on “Begin New ETA Form 9141,” and completing all the mandatory fields.
DOL Labor Certification Registry Goes Live
The Department of Labor (DOL) recently announced implementation of the Labor Certification Registry (LCR) on the Office of Foreign Labor Certification’s (OFLC) iCERT Visa Portal System website. The LCR is intended to provide the public with access to “appropriately redacted” copies of H-1B, H-1B1, E-3, H-2A, H-2B, and permanent labor certification documents issued by OFLC, as well as quarterly and annual case disclosure data. The Department considers it “appropriate” to redact all information regarding the immigrant worker to be sponsored, such as the name, home address, and work history that appear on an application for permanent labor certification. Employers should be aware that the Department did not redact identifying information about company representatives who sign applications for labor certification and LCAs; their names, work phone numbers and addresses, and other contact information at the employer are publicly available.
The LCR displays all certified H-1B1 and E-3 Labor Condition Applications (LCA) and permanent labor certifications, dating back to April 15, 2009. However, the DOL said it is experiencing technical difficulties with the display of approved H-1B LCAs. In addition, due to the historical paper-based filings of H-2A and H-2B applications, the DOL said that it must manually redact and upload these labor certification documents to the LCR. Therefore, only a limited number of records covering fiscal year 2013 are currently available. The agency said it anticipates that H-1B LCAs will be available soon, and that staff will continue to upload historical H-2A and H-2B documents in the coming months.
USCIS ‘Conversation’ on Electronic Immigration System Unveils New Document Library for EB-5 Investor Cases
On May 2, 2013, USCIS held a “conversation” on USCIS ELIS (Electronic Immigration System) and the EB-5 program. USCIS noted that Form I-526, Immigrant Petition by Alien Entrepreneur, will be the first of the EB-5 forms available for e-filing in ELIS. USCIS said that at a March 28 stakeholder teleconference, the agency heard concerns about multiple investors submitting the same documentation with the I-526. To address this concern, USCIS said it plans to add a “document library” to ELIS later in the year. The document library will allow I-526 petitioners to share documents related to a new commercial enterprise that were previously submitted with an approved Form I-924, Application for Regional Center, rather than submitting these same documents with the I-526.
During this call, USCIS officials gave an overview of the document library concept and solicited feedback on managing access to the document library, uploading and storing documents, and regional center and investor expectations.
Senate Passes Comprehensive Immigration Reform; House Passage Uncertain
On June 27, 2013, the full Senate passed comprehensive immigration reform legislation, 68-32, with all Democrats voted in favor of the bill and 14 republicans joined them. The bill includes a lengthy pathway to provisional legal status, permanent residence, and eventual U.S. citizenship for up to 11 million undocumented persons. It also includes enforcement and border control measures like finishing a 700-mile fence along the border with Mexico, deploying an additional 20,000 Border Patrol agents, and mandating E-Verify. Despite the potential costs, the Congressional Budget Office estimated that if the bill became law, it would reduce the United States’ deficit by almost $900 billion over the next 10 years.
A celebratory atmosphere ensued after the vote. Despite admonishments from Vice President Joseph Biden, who presided over the vote, chants of “Yes we can” and “Si se puede” were heard from the public gallery after the bill passed. Sen. Patrick Leahy (D-Vt.) called it a “historic day.”
Meanwhile, a bipartisan group in the House is working on its own version of comprehensive immigration reform, and the House Immigration Subcommittee has been considering several pieces of immigration-related legislation instead of drafting a comprehensive bill. House Speaker John Boehner said, “[T]he House is not going to take up and vote on whatever the Senate passes. We’re going to do our own bill.” He said representatives would go home for recess and “listen to our constituents. And when we get back, we’re going to…have a discussion about the way forward.”
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin
Visa application wait times for any post
Klasko News
Rankings and Listings
Attorneys Named Among Most Powerful
H. Ronald Klasko (Ron) and William Stock (Bill) were named to Human Resources Executive and Lawdragon’s annual Top 200 list of “The Nation’s Most Powerful Employment Attorneys.” Bill and Ron were also named to the list of the Top 20 specialists for Immigration.
In its sixth iteration, this year’s “The Nation’s Most Powerful Employment Attorneys” list comprises attorneys who have typically practiced for more than 20 years, received strong recommendations from peers, as well as corporate counsel who have worked with them, and who have significant legal accomplishments.
Founded in 1987, Human Resource Executive magazine is a monthly publication that focuses on strategic issues in human resources, and written for an audience of key decision makers, offering news, profiles of HR professionals and innovative success stories, covering all areas of human resource management. Lawdragon, which conducted the research for the list, is an online media company that provides free legal news and features as well as searchable database of legal professionals in 90 areas of expertise.
Two Partners named 2013 Top Rated Lawyers™ by American Lawyer Media and Martindale-Hubbell™
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We are pleased to announce that Ron and Bill have been selected as “2013 Top Rated Lawyers”™ by American Lawyer Media and Martindale-Hubbell for immigration law.
To qualify for Top Rated Lawyers, attorneys must have an AV Preeminent® peer review rating, the highest rating in legal ability and ethical standards. To create this list of Top Rated Lawyers, LexisNexis® Martindale-Hubbell® tapped its comprehensive database of Martindale-Hubbell® Peer Review Ratings™ to identify lawyers who have been rated by their peers to be AV® Preeminent™ – the highest Peer Review Rating available. Congratulations Ron and Bill!
News and Noteworthy
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Ron was quoted in The Wall Street Journal, on August 8, 2013, in an article entitled “Favoritism Charges Slow DHS Nominee” authored by Angus Loten and James Grimaldi, in a story relating to how some USCIS employees feel Alejandro Mayorkas gave special treatment to a casino project backed by foreigners. Ron, a representative of a client in question, discussed the approval rate of EB-5 applications.
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The American Immigration Lawyers Association (AILA) elected Bill to its national Executive Committee for the 2013-2014 term. The election results were announced at the official membership meeting during AILA’s 57th Annual Conference held in San Francisco, CA on June 27, 2013. Bill will serve as Second Vice President of the 13,000 member national association of lawyers practicing immigration and nationality law.
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Bill has been elected to the Board of Directors of the American Immigration Council. The American Immigration Council honors, protects and promotes laws, policies and attitudes that preserve the proud history as a nation of immigrants. Through research and policy advocacy, legal education and litigation, educational outreach and international exchange, the Immigration Council seeks to help shape a 21st century vision of American immigration.
Elise A. Fialkowski has been appointed to serve on AILA National’s Vermont Service Center Liaison Committee. The Vermont Service Center committee helps resolve problems and errors in individual cases through the case liaison assistance process. The committee meets with VSC leadership, tracks trends and issues and prepares practice pointers.
Matthew T. Galati (Matt) has been appointed as the Philadelphia AILA Chapter’s 2013-14 Advocacy Chair. In this role, Matt will lead local immigration attorneys in efforts to advocate for comprehensive immigration reform and comprehensive solutions to issues arising under current laws. If you have any particular suggestions for ways to improve our system or are willing to participate in the immigration reform advocacy efforts, please e-mail Matt at mgalati@klaskolaw.com.
Upcoming Speaking Engagements
Daniel B. Lundy (Dan) will speak at “Employment-Based Immigration: EB-5 from Start to Finish,” a seminar sponsored by Pincus Professional Education in Fort Lauderdale, FL on August 29, 2013. Dan, along with other instructors, will provide an overview of the EB-5 program and addresses the requirements of each step in the process, leading to successful investments and permanent resident status for foreign nationals. For more information, click here.
Ron and Bill will present at the Practicing Law Institute’s 46th Annual Immigration & Naturalization Institute program in New York, NY on September 3, 2013. Ron will present “Challenges to Entrepreneurs Coming to the United States” and Bill will speak on “The Ever Evolving World of PERM and LCA Processing.” For more information on these talks, contact the speakers.
Ron will discuss “What’s Next? EB-5 Trends and Developments” at the CDFA/IIUSA Intro EB-5 Finance WebCourse on September 19. Ron will review trends and developments related to the EB-5 Program and highlight some important statistics to consider when using this form of financing. Topics discussed include capital and job formation, actions taking place at the U.S. Citizenship and Immigration Services (USCIS), the federal agency that administers the program, and legislative reforms that could affect the program.
Bill will speak with students at Temple University in Philadelphia regarding post-OPT options on September 24, 2013. Check our website in September for more information on this talk.
Elise will be lecture at a Pennsylvania Bar Institute (PBI) course on October 3, 2013 on worksite enforcement issues including I-9 compliance, audits, LCA enforcement and proactive strategies to reduce liability. For more information, contact Elise at efialkowski@klaskoalw.com.
Ron will visit the Wharton Business School of the University of Pennsylvania on Tuesday, October 8, 2013. He will discuss topics of interest to entrepreneurial business students.
Bill will speak at a seminar sponsored by the Biomedical Postdoctoral Programs of the University of Pennsylvania on Tuesday, October 22, 2013. He will discuss current issues in H-1B Visas, J Visas, – O-1 Visas, the Green Card application, and potential changes to the permanent residence status.
Elise will present at the Advanced Corporate Immigration Law Conference hosted in conjunction with the New Jersey Institute for Continuing Legal Education (NJICLE) on October 23, 2013. Elise will serve as a panelist on “Hot Topics – Compliance and Ethics” and will address the latest developments and advanced issues in Immigration law, including legislative and regulatory changes, developing an I-9 and E-verify compliance program, determining best practices to verify new employees, dealing with remote employees, among other topics.
Recent Speaking Engagements
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Bill served as co-presenter for “When F-1s Go Wild: How to Assess and Correct Nonimmigrant Issues,” a webinar sponsored by NAFSA Region VIII on Thursday, August 8. This webinar outlined key factors in assessing DSO responsibility to the student, institution, and institutional stakeholders who play a role in determining academic and status-based repercussions. Topics included reinstatement, travel, reentry and changes of status.
Anusree Nair (Anu) presented at “Employment-Based Immigration: EB-5 Start to Finish” a continuing legal education seminar sponsored by Pincus Professional Education in Chicago, IL, on July 12, 2013. This comprehensive seminar provided an overview of the EB-5 immigrant investor program and the requirements of the application process, leading to successful investments and permanent resident status for the foreign national. Specifically, Anu discussed documentation of investors’ source and path of funds and representing investors at U.S. Consulates overseas.
Elise presented at the Global Village Visa Panel at Lehigh University in Bethlehem, PA on July 10, 2013. Elise discussed immigration laws and regulations affecting students, scholars, employees, business people and investors.
Ron and Bill presented at the 2013 AILA Annual Conference in San Francisco from June 26-29, 2013.
- Ron served as a member of the roundtable for “Masters Business: Hot Topics with EB-5 Regional Centers.” This panel discussed issues encountered in the representation of regional centers, including recent RFE trends in regional center projects, job creation and impacts analysis, material change issues related to modification of project, and advanced professional responsibility issues, among other topics. For more information on EB-5, visit www.eb5immigration.com.
- Bill was featured on the “Hot Topics” opening plenary session discussing developments in employment-based immigration. He also served as a panelist for “Immigration Policies from the Employer’s Perspective,” a session that highlighted key issues on which attorneys should focus when representing employers, to assist in establishing streamlined policies. Topics included H-1B housekeeping: withdrawals, portability start dates, and tracking the movement of workers; establishing policies about initiation of the green card process; developing and maintaining an I-9 compliance program; and maintaining NIV status after the I-485 is filed, among other policy issues. For more information on developing and administering corporate immigration policies, contact Bill at wstock@klaskolaw.com.
Bill, in collaboration with attorneys from the University of Pennsylvania and Kent State University, presented “The Immigration Law Survival Guide for University Attorneys” at the National Association of College and University Attorneys (NACUA) Annual Conference on June 22, 2013.
Recent Publications
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Ron was contributing authors to AILA’s Immigration Practice Toolbox 4th Edition (June 2013). The Toolbox contains a collection of articles, templates, and samples, as well as updates, to supplement a practitioner’s knowledge of immigration law. The Toolbox is divided into sections that address separate aspects of immigration law practice.
Walter S. Gindin authored “Legacy and Continued Viability of the Lautenberg Amendment,” published in The Legal Intelligencer on June 19, 2013. In memoriam of the late Senator Frank Lautenberg, this article discusses one of his most significant and enduring achievements – the Lautenberg Amendment – which facilitated the resettlement of tens of thousands of Jewish and Christian refugees from the former Soviet Union. To request a copy of this article, contact Walter at wgindin@klaskolaw.com.
What You May Have Missed
Blogs Entries and Client Alerts
- The “2½ Year Rule” for Job Creation is Incorrect as a Matter of Law, Fact and Policy
July 15, 2013 by H. Ronald Klasko - DHS Secretary Napolitano Announces Implementation of the Supreme Court Ruling on the Defense of Marriage Act
July 2, 2013 by Marc I. Walsh
